Opinion
No. 02 Civ. 2249 (PKC)(KNF).
June 13, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE P. KEVIN CASTEL, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiffs Regine Legrand ("Legrand"), Rose Lafrance ("Lafrance"), Margo Hutchinson-Davis ("Hutchinson-Davis"), and Donna Mattos ("Mattos") (collectively, "plaintiffs") brought this employment discrimination action against defendant New York Restaurant School/Education Management Corporation ("School"), alleging violations of, inter alia, 42 U.S.C. § 1981 ("§ 1981"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").
In materials submitted in opposition to the instant applications, the defendant has indicated that it is now known as the "Art Institute of New York City."
Before the Court are the applications of: (1) the plaintiffs for an award of attorney fees and costs; and (2) the Law Offices of Leonard N. Flamm ("Flamm"), former counsel to the plaintiffs, for an award of attorney fees. The applications are addressed below.
II. BACKGROUND AND FACTS
Flamm represented the plaintiffs in this action until October 21, 2003, when the firm was permitted to withdraw from its representation of the plaintiffs in this action. The law firm of Michael Shen and Associates, P.C. ("Shen") appeared on behalf of the plaintiffs on October 31, 2003. Subsequently, each plaintiff entered into a settlement agreement with and/or accepted an offer of judgment from the School.Thereafter, Flamm made one of the applications that is before the Court, for an award of attorney fees incurred in connection with the representation it provided the plaintiffs ("Flamm application"). The plaintiffs made the other application that is before the Court, for an award of attorney fees and costs incurred in connection with the legal services Shen provided for them ("Shen application").
In support of the respective applications, Flamm and Shen have submitted the contemporaneous time records of their firms, along with affidavits and declarations containing information about each firm's personnel and the services provided in connection with this action. Among these is a declaration of Michael Shen ("Shen declaration"), which contains, inter alia, information about costs incurred by the plaintiffs in the prosecution of this action. The awards sought in the Flamm and Shen applications are $61,362.50 and $192,775.85, respectively.
After the School submitted its memorandum of law in opposition to the instant applications, the plaintiffs withdrew from the Shen application their claim for attorney fees for 3.2 hours of work and included a claim for attorney fees for an additional 14.1 hours. The latter claim reflects work performed by Shen after the Shen application was submitted. The above-noted statement of the amount of the request in the Shen application reflects these modifications.
The School opposed the Flamm application initially. Thereafter, however, Flamm agreed to assign to the School any right to an additional award of attorney fees arising out of Flamm's representation of the plaintiffs ("Flamm assignment"). In consideration thereof, the School agreed to pay Flamm $50,000.
Flamm had previously received compensation from two of the six original plaintiffs who brought this action based upon a contingency fee agreement into which they had entered with Flamm.
The School opposes the Shen application on the grounds that: (1) the time devoted to opposing a summary judgment motion was excessive; (2) certain hours billed by Shen after all plaintiffs had accepted settlement agreements and/or offers of judgment should not be included in the application; (3) the contemporaneous time records submitted by Shen in support of the application contain vague descriptions and instances of block billing; and (4) certain time entries are improper as they pertain to "a different matter involving these parties." In light of these alleged deficiencies, the School maintains that the attorney fees sought in the Shen application should be reduced by approximately 40%.
III. DISCUSSION
A prevailing plaintiff in a Title VII or § 1981 action may recover reasonable attorney fees. See 42 U.S.C. § 2000e-5(k); 42 U.S.C. § 1988(b). It is undisputed that the plaintiffs are prevailing parties within the meaning of these statutes.
The determination of reasonable attorney fees begins with the computation of a lodestar, that is, "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983).
In general, when fixing a reasonable rate for attorney fees, it is appropriate for a court to consider and to apply the prevailing market rates in the relevant community for similar legal work of lawyers of reasonably comparable skill, experience and reputation. See Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S. Ct. 1541, 1547 n. 11 (1984). In addition, it is permissible for a court to rely upon its own knowledge of private firm hourly rates in deciding what reasonable attorney fees are in the community. See Miele v. New York State Teamsters Conf. Pens. Retirement Fund, 831 F.2d 407, 409 (2d Cir. 1987).
In the Second Circuit, a party seeking an award of attorney fees must support that request with contemporaneous time records that show, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Attorney fee applications that do not contain such supporting data "should normally be disallowed." Id. at 1154. "Time records should enable the court to determine the nature of the tasks performed and the amount of time reasonably required to perform those tasks." Mr. X. v. New York State Educ. Department, 20 F. Supp. 2d 561, 564 (S.D.N.Y. 1998). Where documentation of the number of hours expended is vague or incomplete, a court may reduce the award. Id. Further, in such instances, rather than evaluating and ruling on every time entry in a fee application, a court may apply an across-the-board percentage reduction to the requested award. See New York State Ass'n for Retarded Children, 711 F.2d at 1146.
Shen Application A. Rates of Compensation
In the Shen application, the plaintiffs request hourly rates of compensation of $375 for work performed by Mr. Shen and $60 for work performed by a paralegal employed by the firm. In light of the factors noted above, the Court finds that the requested rates are reasonable. B. Number of Hours
The plaintiffs request a lodestar of $190,735.50 for 533.45 hours of work performed by Shen between March 15, 2003, and January 6, 2005. Included in these hours is the following work by Mr. Shen: (a) approximately 180 hours devoted to opposing a summary judgment motion filed by the School; (b) 2.7 hours on various dates devoted to negotiating an agreement between Legrand and the School, under which Legrand would receive a severance payment in exchange for resigning from the School's employment; (c) 0.7 hours devoted to reviewing checks received and speaking with Legrand and LaFrance on November 30, 2004, and to telephone conferences — "re $" — with Lafrance, Hutchinson-Davis and Mattos on December 1, 2004; and (d) 3.6 hours of work on October 7, 2004, devoted to reviewing and revising proposed jury instructions, prompted by the court's request that he submit proposed jury instructions in electronic form. The School objects to these groups of time entries, contending that the first is excessive and that the others are inappropriate or too vague to warrant compensation.
Some time entries for Shen's work in connection with the summary judgment motion also contain other, unrelated work, the actual time spent in connection with the summary judgment motion, according to Shen's records, could be as little as 175.9 hours and as much as 185.7 hours.
The School's memorandum of law states that 2.4 hours contained in the Shen billing records were devoted to this task, but the entries identified by the School total 2.7 hours. Additionally, the defendant's memorandum misstates one of these entries — for December 9, 2003 — as 0.3 hours; it is actually 0.5 hours.
According to Shen's records, of the 180 hours that Shen devoted to opposing the summary judgment motion, 8.0 hours were devoted to "facts" and 11.3 hours were devoted to "R56," which the Court understands to refer likely to preparation of the plaintiffs' statement of disputed material facts, pursuant to Local Civil Rule 56.1. The other approximately 160 hours are described simply as "prep m.sj," "prep mot," memo sj," "worked on motion," or "m.sj." Without additional information about the component tasks performed during these approximately 160 hours of attorney time, the records before the Court lack the specificity necessary to enable the Court to evaluate the reasonableness of expending such a large number of hours opposing the summary judgment motion. The Court is mindful that the memoranda submitted in support of the Shen application describe generally the complexity of the action and the challenges posed by Mr. Shen's then-recent appearance in the action. For example, in their memorandum in support of the Shen application, the plaintiffs state that "since Mr. Shen had only recently become involved in the case, he had to gather, review and synthesize much evidence for the first time. The facts are extensive, the Rule 56.1 Statement of Disputed Facts, alone, being 666 paragraphs and 74 pages, and the legal issues many." While this and other such statements in the plaintiffs' memoranda are helpful, they do not remedy fully the lack of specificity in the individual time records regarding this large number of hours. Accordingly, the Court finds that the insufficiently described 160 hours should be reduced to 100 hours, resulting in a $22,500 reduction (60 hours @ $375 per hour) in the amount of attorney fees requested in the Shen application.
The School contends that no award should be made for the 2.7 hours devoted to negotiating an agreement between Legrand and the School, as that work was conducted after Legrand and Lafrance accepted offers of judgment. The plaintiffs contend that the agreement between Legrand and the School concerned Legrand's separation from employment by the School and "was an integral part of the resolution of Ms. Legrand's case. . . ." In a civil rights action, a prevailing plaintiff is not barred from recovering attorney fees simply because they were incurred after the entry of judgment. See, e.g., Balark v. Curtin, 655 F.2d 798, 802-03 (7th Cir. 1981) (holding that plaintiff may be compensated for attorney fees incurred in order to collect on judgment); New York State Ass'n for Retarded Children, 711 F.2d at 1153-54 (directing an award of attorney fees incurred, in part, as a result of post-judgment monitoring of consent decree implementation). Accordingly, the fact that the 2.7 hours of work contested by the School occurred after the entry of judgment does not, without more, render that work non-compensable. The Court finds that an award of attorney fees for the time entries in question is reasonable.
The School contends that the 0.3 hours devoted to reviewing checks and having contemporaneous conversations with Legrand and Lefrance on November 30, 2004, is "time for a different matter involving these parties which must be excluded from this application." The School makes the same contention about 0.4 hours Shen devoted to conversations with Lafrance, Hutchinson-Davis and Mattos regarding money. The School does not identify any evidentiary basis for these contentions. Moreover, the evidence in the record supports the opposite conclusions. The time entries in question follow closely the entry of judgment against the School and in favor of Legrand and Lafrance. The time entries also include communications between Shen and these two plaintiffs. Settlement negotiations concerning the claims of Hutchinson-Davis and Mattos were also underway at the time. Accordingly, the Court finds it reasonable to infer that the contested 0.7 hours were reasonably devoted to the receipt and review of payments in satisfaction of the judgment in this action and discussion concerning those payments and concerning settlement negotiations with pertinent plaintiffs. The Court finds that an award of attorney fees for these tasks is warranted, see Balark, 655 F.2d at 802-03, and that the time devoted to these tasks was reasonable.
According to the School, it was not necessary for Shen to devote time on October 7, 2004, reviewing and revising the plaintiffs' proposed jury instructions. The School notes — and the firm's contemporaneous time records confirm — that Mr. Shen prepared proposed jury instructions previously, in April 2004. The plaintiffs contend that Shen's additional review and revision of the proposed jury instructions was not untimely, as the court had not yet determined the final version of the jury instructions. However, regardless of whether Shen's additional review and revision of the proposed jury instructions was timely, no basis in the record exists upon which to conclude that this additional work was reasonably necessary. Accordingly, a reduction of $1,350 (3.6 hours @ $375 per hour) in the amount of attorney fees requested in the Shen application is warranted.
The School challenges a number of other entries in Shen's contemporaneous time records on the grounds that they are vague and/or include instances of block billing. A number of entries in Shen's contemporaneous time records provide little information about the work performed, indicating only, for example, that Shen had a conversation with an individual by telephone or devoted time to "rev[iewing the] file." Without additional information, such as the general subject matter of a conversation or the purpose of a review of the firm's file, such descriptions lack the specificity necessary to enable the Court to determine the reasonableness of the number of hours billed in the corresponding entries. These deficiencies warrant an additional $8,000.00 (approximately 5%) across-the-board reduction of the amount of attorney fees requested in the Shen application.
Although the time records submitted by Shen do contain instances of block billing, as the School contends, the Court finds that these are not so extensive as to impede significantly the Court's assessment of the reasonableness of the hours spent on the litigation by Shen. Therefore, no reduction in the requested attorney fee is warranted on this account.
Shen's time records also include an entry for 1.2 hours of work performed on March 15, 2003, described as "ORIG NOTE" (capitalization in original). Although the School has not objected to this entry, the Court notes that the record does not provide any information about the nature of the work that Shen might have performed on March 15, 2003, described in Shen's contemporaneous time records as "ORIG NOTE". Moreover, according to the Shen declaration, Shen's initial contact with the plaintiffs in this action did not occur until over two weeks after that date, on April 2, 2003. Accordingly, the plaintiffs have not met their burden to demonstrate that an award of attorney fees for this work would be reasonable. A reduction of $450 (1.2 hours @ $375 per hour) in the amount of attorney fees requested in the Shen application is warranted.
The Court finds that the plaintiffs' application for $2,040.35 in costs incurred in the prosecution of this action is reasonable.
Based on the above, an award of $160,475.85, representing $158,435.50 in attorney fees and $2,040.35 in costs, is reasonable and appropriate.
Flamm Application
As a consequence of the Flamm assignment, the School would be entitled to retain any additional award of attorney fees it might be directed to pay to Flamm for his representation of the plaintiffs. Therefore, the Flamm application is moot and should be denied.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the plaintiffs be granted $160,475.85: attorney fees in the amount of $158,435.50, and costs in the amount of $2,040.35. I recommend further that the Flamm application be denied.
V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, 500 Pearl Street, Room 2260, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Castel. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. SeeThomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).