Casaccia v. City of Rochester et al

Filing 108

DECISION AND ORDER granting 93 Motion for Attorney Fees. The Court awards Mr. Shields $67,135.00 as reasonable attorney fees and $490.28 in costs. The Clerk will enter judgement for Roth and Roth LLP in the amount of $67,625.28.SO ORDERED. Signed by Hon. Mark W. Pedersen on 9/15/21. (KAP)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL CASACCIA and MARYBETH
CASACCIA,
Plaintiffs,

DECISION AND ORDER

-vs-

17-CV-6323-FPG-MJP

CITY OF ROCHESTER, et al.,
Defendants.
APPEARANCES
For Plaintiffs:

Donald M. Thompson, Esq.
16 West Main Street, Suite 243
Rochester, NY 14614
[phone]
Elliot Dolby Shields, Esq.
Roth & Roth, LLP
192 Lexington Avenue, Suite 802
New York, NY 10016
[phone]
Mark A Foti, Esq.
16 W. Main Street, Suite 100
Rochester, NY 14614
[phone]

For Defendants:

Spencer L. Ash, Esq.
City of Rochester
Law Department
City Hall, Room 400-A
30 Church Street
Rochester, NY 14614-1295
[phone]
INTRODUCTION

Pedersen, M.J. Plaintiffs have filed a 142-page motion seeking an award of
attorney’s fees in the total amount of $73,500 and costs in the total amount of $490.28
pursuant to Federal Rule of Civil Procedure 37(c)(1)(A). (Notice of Mot., Oct. 8. 2020, ECF

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No. 93.) Defendants oppose the motion in several respects. For the reasons stated below,
the Court awards $67,135.00 in attorney fees and $490.28 in costs.
BACKGROUND
Plaintiffs filed a civil rights action against Defendants on May 23, 2017. (Compl.,
ECF No. 1.) The case was assigned to the Honorable Michael A. Telesca, who issued a
decision and order on January 8, 2018, granting in part Defendants’ motion to dismiss.
(Decision & Order, ECF No. 17.) Judge Telesca referred the case to the Honorable
Jonathan W. Feldman, U.S. Magistrate Judge, who issued a scheduling order on July 25,
2018. (Scheduling/Case Management Order, ECF No. 22.) That scheduling order directed
that mandatory disclosures be made by September 30, 2018, with factual discovery to
close on June 30, 2019. Elliot Dolby Shields entered his appearance on March 4, 2019
(ECF No. 24),) and filed an amended complaint on April 12, 2019 (ECF No. 29). On April
15, 2019, Defendants moved for “Denial of Amended Complaint,” (Notice of Mot., ECF
No. 30), and on August 14, 2019, Judge Telesca issued a Decision and Order denying that
motion, denying Plaintiffs’ motion for sanctions, and extending the discovery deadline to
September 30, 2019. (Decision and Order, ECF No. 43.)
On August 26, 2019, Plaintiffs filed a second motion to compel and sought another
extension of the discovery deadline. (Notice of Mot., ECF No. 45.) Defendants crossmoved to bifurcate the discovery: severing any discovery for Plaintiffs’ Monell 1claims.
While those motions were pending, Defendants filed a motion for summary judgment on
October 29, 2019 (ECF No. 58). On November 14, 2019, the case was referred to the
undersigned for all non-dispositive pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A).

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See Monell v. Dep’t of Soc. Svcs. of City of New York, 436 U.S. 658 (1978).

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The Court granted the parties’ mutual request to extend discovery in an Order
entered on December 20, 2019 (ECF No. 68). On January 24, 2020, Judge Telesca referred
to the undersigned the motion to bifurcate discovery (ECF No. 47) and the second motion
to compel (ECF No. 45) for resolution. In a Decision and Order filed on March 4, 2020,
the undersigned granted Plaintiffs’ motion to compel and motion for sanctions (ECF No.
45) and denied Defendants’ motion to bifurcate discovery (ECF No. 47). Following the
death of Judge Telesca, the case was transferred to then-Chief District Judge Frank P.
Geraci, Jr. (Text Order Transferring Case, ECF No. 72.)
In its 19-page Decision and Order granting Plaintiffs’ motion to compel and for
sanctions, the Court determined that Plaintiffs’ case was not frivolous, and that Plaintiffs
were not required to prove individual liability before any Monell claim could be viable.
(Casaccia v. City of Rochester, No. 17-CV-6323-FPG-MJP, 2020 WL 1042149 (W.D.N.Y.
Mar. 4, 2020).) The Court noted:
Without seeking a protective order from the Court, counsel for the City
Defendants informed Plaintiffs’ counsel, “I’ve said multiple times I will not
turn over the discovery you’ve requested without first providing same to
the Court for review.” (ECF No. 45-33.) As stated above, City Defendants
never provided a privilege log despite claiming that much of the material
sought was privileged.
(Decision and Order at 18, ECF No. 71.) The Court directed Defendants to produce
itemized discovery “by March 23, 2020,” and comply with Fed. R. Civ. P. 30(b)(6) by
“March 9, 2020.” (Id. at 16 & 17 (emphasis in original).) It also awarded costs and
reasonable attorney fees associated with Plaintiffs’ motion to compel and preparation of
the motion for fees.
Instead of complying with the Order, Defendants filed a motion for reconsideration
on March 17, 2020 (ECF No. 73). Plaintiffs filed a motion to compel and a third motion

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for sanctions on March 26, 2020 (ECF No. 77), to which Defendants responded on April
2, 2020 (ECF No. 78), April 7, 2020 (ECF No. 79), and April 9, 2020 (ECF No. 80). The
Court issued a Decision and Order denying Defendants’ motion for reconsideration (ECF
No. 73) and granting Plaintiffs’ motion to compel and for sanctions (ECF No. 77).
(Decision and Order, Jun. 1, 2020, ECF No. 82; Casaccia v. City of Rochester, No. 17-CV6323-FPG-MJP, 2020 WL 2833008 (W.D.N.Y. Jun. 1, 2020).) On June 18, 2020, Judge
Geraci denied Defendants’ motion for summary judgment without prejudice to refiling at
the close of discovery. (Decision and Order, ECF No. 83.)
On October 8, 2020, Plaintiffs filed the pending motion for attorney fees. (Notice
of Mot., ECF No. 93.) The Court did not issue a motion scheduling order; thus, per the
local rule, Defendants’ response was due on October 22, 2020. W.D.N.Y. Loc. R. Civ. P.
7(b)(2)(B). On November 2, 2020, Defendants filed their opposition to Plaintiff’s
application. (Mem. of Law in Opp’n, ECF No. 94.) Inasmuch as the fee award here is a
sanction, not because of a fee-shifting statute, the presumption of an in-forum hourly rate
is less applicable. See, e.g., Ceglia v. Zuckerberg, No. 10-CV-569A(F), 2012 WL 503810,
*9 (W.D.N.Y. Feb. 14, 2012).
STANDARD OF LAW
Because the Court has already awarded the sanction of reasonable attorney’s fees
and costs in prior orders, it need only concern itself here with the reasonableness of
Plaintiffs’ application. Fed. R. Civ. P. 37(c)(1)(A) states:
(c) Failure to Disclose, to Supplement an Earlier Response, or to
Admit.
(1) Failure to Disclose or Supplement. If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party
is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially
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justified or is harmless. In addition to or instead of this sanction, the court,
on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney’s
fees, caused by the failure . . . .
As the Court determined that Defendants willfully failed to provide the discovery ordered
by Judge Feldman and the undersigned, it finds that Defendants were at fault.
Nevertheless, the Court did not impose the harshest sanction sought, but merely ordered
costs and reasonable attorney fees.
Sanctions under Rule 37 perform a threefold purpose. Relevant here is the purpose
to specifically deter and secure compliance, as well as the purpose of general deterrence.
Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066
(2d Cir. 1979); see also Roadway Exp., Inc. v. Piper, 447 U.S. 752, 763–64 (1980) (quoting
National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976) (“Rule 37
sanctions must be applied diligently both ‘to penalize those whose conduct may be
deemed to warrant such a sanction, [and] to deter those who might be tempted to such
conduct in the absence of such a deterrent.’”).
In its decision in Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of
Albany, 522 F.3d 182 (2d Cir. 2008), the Court of Appeals panel recommend the following
considerations when awarding reasonable attorney fees:
We think the better course—and the one most consistent with attorney's
fees jurisprudence—is for the district court, in exercising its considerable
discretion, to bear in mind all of the case-specific variables that we and
other courts have identified as relevant to the reasonableness of attorney’s
fees in setting a reasonable hourly rate. The reasonable hourly rate is the
rate a paying client would be willing to pay. In determining what rate a
paying client would be willing to pay, the district court should consider,
among others, the Johnson factors; it should also bear in mind that a
reasonable, paying client wishes to spend the minimum necessary to
litigate the case effectively. The district court should also consider that such
an individual might be able to negotiate with his or her attorneys, using
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their desire to obtain the reputational benefits that might accrue from
being associated with the case. The district court should then use that
reasonable hourly rate to calculate what can properly be termed the
“presumptively reasonable fee.”
Id. at 190. The Circuit Court also discussed an issue relevant here: using an out-ofdistrict hourly rate. In that regard, the panel wrote:
We now clarify that a district court may use an out-of-district hourly rate—
or some rate in between the out-of-district rate sought and the rates
charged by local attorneys—in calculating the presumptively reasonable
fee if it is clear that a reasonable, paying client would have paid those
higher rates. We presume, however, that a reasonable, paying client would
in most cases hire counsel from within his district, or at least counsel whose
rates are consistent with those charged locally. This presumption may be
rebutted—albeit only in the unusual case—if the party wishing the district
court to use a higher rate demonstrates that his or her retention of an outof-district attorney was reasonable under the circumstances as they would
be reckoned by a client paying the attorney's bill.
Id. at 191.
ANALYSIS
Defendants’ Opposing Papers
Defendants filed their papers opposing Plaintiff’s motion eleven days late. Federal
Rule of Civil Procedure 6 provides, in pertinent part:
When an act may or must be done within a specified time, the court may,
for good cause, extend the time: …
(B) on motion made after the time has expired if the party failed to act
because of excusable neglect.
Fed. R. Civ. P. 6(b)(1)(B). Defendants’ counsel was admitted to practice in the Court in
2006. He is an experienced litigator familiar with the Federal and local rules of civil
procedure. Nevertheless, counsel has not provided any reason why the Court should
accept his opposition papers filed eleven days late. Generally, “failure to follow the clear
dictates of a court rule will generally not constitute such excusable neglect.” Canfield v.
Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997). As Defendants have
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offered no reason for failure to comply with the Federal rules and this Court’s local rule,
the undersigned will not accept Defendants’ opposition papers. Nevertheless, the Court
cannot simply grant Plaintiffs’ motion as unopposed—it must still determine the
reasonableness of the demand.
Out-of-District Hourly Rates
Defendants argue that its out-of-district hourly rates of $475 for Mr. Shields, $750
for Mr. Roth, and $675 for Mr. Thompson are reasonable. (Def.s’ Mem. of Law at 19–24.)
As Mr. Shields stated:
As attested to in the declaration of Don Thompson, managing partner at
Easton Thompson Kasperek Shiffrin, LLP, Mr. Thompson regularly refers
me clients in Rochester with complex civil rights and wrongful conviction
claims because there are no Rochester attorneys with the skill, experience
or ability to competently represent these individuals—let alone attorneys
who would even consider taking the case. Mr. Thompson asked me to come
onto the case as lead counsel after his associate who was handling the case
left his firm, and the other attorney who he’d brought onto the case—Mark
Foti—also became too busy with his own criminal defense practice. Mr.
Thompson specifically brought me onto this case because it involved a
complex municipal liability claim regarding the City’s deliberate
indifference to the widespread use of excessive force by RPD officers, as
demonstrated by the RPD’s failure to supervise and discipline officers who
use excessive force.
(Shields Decl. ¶ 69, ECF No. 93-2.)
Mr. Shields has filed 23 cases in the Court dealing with civil rights. The
undersigned has witnessed his performance in at least two other cases and notes the
expertise he projects in doggedly pursuing civil rights claims under Monell. In the
undersigned’s over twenty years with the Western District of New York, no other counsel
practicing has so vigorously pursued the discovery necessary to mount a potentially
successful Monell claim. Therefore, it is reasonable that Mr. Thompson, who originally
brought this case on Plaintiffs’ behalf, sought Mr. Shields’ expertise. Mr. Shields has

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practiced with the Roth & Roth firm since 2016 and maintains an office in New York
City. Roth & Roth, https://www.rothandrothlaw.com/elliot-shields-attorney/ (last visited
Sept. 8, 2021). He has experience in the trial and appellate courts. (Def.s’ Mem. of Law
at 19–20, ECF No. 93-1.) The Court Finds that retention of an out-of-district attorney for
this case is reasonable, as is Mr. Shields’s discounted hourly rate of $475.00.
However, in view of Mr. Shields’ experience, the Court determines that the
involvement of other counsel and consultation by Mr. Shields with other counsel was
unnecessary for preparation of the motions to compel and seek sanctions. In that regard,
the Court will not make any determination as to the reasonableness of their hourly rates.
Time Records
The Court has reviewed the time records and assumes that “DAR” refers to David
A. Roth, a partner of the law firm of Roth & Roth, and “ES” refers to Mr. Shields.
(Activities Export at 1, attached to Shields Decl., ECF No. 93-2, as ECF No. 93-3.) After
reviewing the detailed billing summaries, the Court reduces the requested fee of $73,500
to $67,135.00. The basis for the reduction in fees requested include a portion of the fees
billed which would have been more appropriately done by a paralegal at a lower billing
rate. Additionally, as Plaintiffs’ counsel pointed out in his motion for fees, he is an expert
in litigation of this kind. Therefore, certain entries where he consulted with other
partners in his firm over review of emails or pleadings are excluded, as is his fee for
learning how to bring in Federal court the equivalent of a New York order to show cause.
Regarding Mr. Shield’s claim for costs, the Court has reviewed the detailed information
he provided and finds that the claim is reasonable.

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CONCLUSION
Based on the Court’s analysis, it awards Mr. Shields $67,135.00 as reasonable
attorney fees and $490.28 in costs. The Clerk will enter judgement for Roth and Roth
LLP in the amount of $67,625.28.
SO ORDERED.
Dated: September 15, 2021
Rochester, New York

_______________________
MARK W. PEDERSEN
United States Magistrate Judge

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