Opinion
02 Civ. 2 (RCC)(MHD).
April 21, 2005
MEMORANDUM ORDER
By memorandum and order dated March 3, 2005, we granted plaintiff's sanctions motion against defendant Tamir Sapir, and we directed that Mr. Sapir was to reimburse plaintiff for her expenses, including reasonable attorney's fees, engendered by the sanctions motion. Ashkinazi v. Sapir, 2005 WL 545205 (S.D.N.Y. March 3, 2005). In support of plaintiff's application for a fee award, her counsel subsequently submitted an affidavit with annexed time records. (Affidavit of Paul T. Shoemaker, Esq., executed March 15, 2005). Defendant, although given the opportunity to file responding papers, has failed to do so.
That decision was recently affirmed by the District Court. (Memorandum Order dated April 19, 2005).
Defendant submitted only objections to the Report Recommendation. See Affidavit of Samuel Racer, Esq., sworn to on Mar. 23, 2005.
Plaintiff's attorney has documented the expenditure of 38.5 hours of attorney time between October 5, 2004 and March 4, 2005. (See id. at ¶ 3). As for his hourly rate, he asks for $425.00 for work done in 2004 and $435.00 for work performed this year.
Although counsel has listed 38.5 hours of time in his affidavit, he makes his fee calculations on the premise that his claimed time totals 43.5 hours. (See id. at ¶ 6). We rely on the day-by-day breakdown of time, which is consistent with counsel's annexed time records.
Having reviewed plaintiff's submission, we conclude that she is to be awarded $14,025.00 in fees.
Plaintiff has not sought the award of any other expenses.
A. The Governing Criteria
When assessing fee applications under the discovery rules, the courts look to the long-accepted lodestar method of determining attorneys' fees. See, e.g., Pierce v. Underwood, 487 U.S. 552, 557, 565 (1989); SEC v. Thrasher, 1995 WL 552704, at *4 (S.D.N.Y. Sept. 18, 1995); Cathay Pacific Airways, Ltd. v. Fly See Travel, Inc., 1991 WL 258767, at *1-2 (S.D.N.Y. Nov. 27, 1991). Under the lodestar analysis, "the number of hours reasonably expended on the litigation is multiplied by a reasonable hourly rate for attorneys and paraprofessionals."Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). Accord Clark v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992). We briefly summarize the criteria applicable to each aspect of the analysis.
To determine the number of hours that should be compensable, the court must initially look to the amount of time spent on each category of tasks, as documented by contemporaneous time records of the moving party's attorney. See, e.g., New York Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1142-43 (2d Cir. 1983). The court must then determine how much of that time was "reasonably" expended. "In calculating the number of `reasonable hours,' the court must look 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." Clark, 960 F.2d at 1153 (quoting DiFillipo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985)). If the court concludes that portions of the expended time were not reasonably necessary to achieve the successful result obtained by the movant, it should reduce the time for which compensation is awarded. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983); Clark, 960 F.2d at 1153; Cowan v. Prudential Ins. Co. of America, 935 F.2d 522, 525 (2d Cir. 1991). Such reductions are appropriate to account for work on claims or issues unrelated to those on which the movant ultimately prevailed, see, e.g., Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 558-61 (1986); Mikes v. Straus, 274 F.3d 687, 705 (2d Cir. 2001), or for plainly inefficient or duplicative work. See, e.g., Hensley, 461 U.S. at 434; Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 98 (2d Cir. 1997).
As for the appropriate hourly rates, the court should look to the rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984) (citing cases); Chambless v. Masters, Mates Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir. 1989). In meeting this requirement, the fee applicant bears the burden of proof, see, e.g., Blum, 465 U.S. at 896 n. 11; Chambless, 885 F.2d at 1059, although the court may also take judicial notice of prevailing rates in its own legal community. See, e.g., Miele v. New York State Teamsters Conf. Pension Retirement Fund, 831 F.2d 407, 409 (2d Cir. 1987). Accord Chambless, 885 F.2d at 1059.
In making findings with respect to the proper hourly rate, the court should look to fees charged by attorneys comparably situated to those representing the movant. Thus, if the movant is represented by a small or medium-sized firm, the appropriate rates are those typically charged by such firms, whereas a movant may obtain higher compensation rates if represented by a large urban firm, since such firms typically charge more per hour to cover a higher overhead. See, e.g., Chambless, 885 F.2d at 1058-59; Huertas v. East River Housing Corp., 662 F. Supp. 282, 286 (S.D.N.Y. 1986), vacated on other grds., 813 F.2d 580 (2d Cir. 1987).
Although the lodestar figure is the presumptively appropriate amount to award, there may be circumstances that justify an adjustment. For example, enhancement may be justified by significant delay in obtaining an award or by the court's finding that the attorney assumed a substantial and provable risk of loss. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 283-84 (1989); Delaware Valley Citizens' Council, 483 U.S. at 730-31.
B. Assessment of Plaintiff's Application
We start with the time claimed by plaintiff, all of which is attributable to the labors of her attorney, Paul T. Shoemaker, Esq. Since we approved an award only for the expenses generated by the sanctions motion — the need for which was triggered by Mr. Sapir's failure to appear at his scheduled October 13, 2004 deposition session — we exclude plaintiff's entries for October 5, 6, 7 and 12, 2004. We do so because the work reflected in those entries was triggered by the anticipated deposition of Mr. Sapir and not by the motion, which was initiated only after Mr. Sapir chose not to attend the deposition. We also exclude the entry for October 29, 2004, which does not reflect a time expenditure generated by the need to prepare the sanctions motion.
With the exception of these exclusions — which total five and one-half hours — the time recorded by plaintiff's attorney between October 13, 2004 and March 4, 2005 involved preparation of the sanctions papers and other matters sufficiently closely related to that motion to justify reimbursement. We also find that the amount of time for which compensation is sought (33.0 hours) reasonably reflects the work involved — including both the importance of the successful resolution of the dispute to plaintiff's position in the litigation and the extent and quality of the work product created to support her position.
As for the hourly rates claimed by counsel, Mr. Shoemaker reports that in 2004 he billed his work at $425.00 per hour and that this year his rate has increased to $435.00. He is an experienced litigator, having practiced for twenty six years, and is a partner in a relatively small New York firm. He specializes in employment rights litigation, and has previously sought and been awarded fees on the basis of his then-current rate of $390.00 in 2001. See Gonzalez v. Bratton, 147 F. Supp. 180, 211-12 (S.D.N.Y. 2001), aff'd, 2002 WL 31317871 (2d Cir. 2002).
Although plaintiff offers no other evidence of current rates for comparably situated attorneys in this district, we note that other courts in recent years have awarded fees at fairly similar rates to senior small-firm partners in civil rights litigations. See, e.g., Raniola v. Bratton, 2003 WL 1907865, *6 (S.D.N.Y. April 21, 2003) (awarding $400.00 rate to experienced small-firm partner); see also id. (citing Helbrans v. Coombe, 890 F. Supp. 227, 234 (S.D.N.Y. 1995); Wahad v. Coughlin, 870 F. Supp. 506 (S.D.N.Y. 1994) — both cases awarding $350.00 per hour in 1994 and 1995).
Under the circumstances, we conclude that plaintiff may properly be reimbursed for fees at an hourly rate of $425.00 for work performed in connection with the motion. Accordingly, we award plaintiff a total of $14,025.00 in attorney's fees incurred in connection with her sanctions motion, and direct that defendant Tamir Sapir pay that amount to her within ten days from the date of this order.
In doing so, we do not distinguish between the tasks performed in late 2004 and the few hours spent in March of this year.
We note that plaintiff has not sought reimbursement for the time spent resisting defendant Sapir's appeal from the March 3, 2005 decision. She may make such an application within seven days from the issuance of this memorandum and order.
CONCLUSION
For the reasons noted, defendant Sapir is to pay plaintiff $14,025.00, representing the expenses and fees attributable to her sanctions motion.