Opinion
Civil Action No. 01-11313-GAO
January 9, 2003
MEMORANDUM AND ORDER
November 25, 2002, a jury found that the City of Boston had violated the constitutional rights of the three plaintiffs. The jury awarded each plaintiff $15,000 in damages plus prejudgment interest at a rate of 5%, amounting to an additional $995.74 for each plaintiff. The plaintiffs now petition for an award of attorney's fees and costs pursuant to Federal Rule of Civil Procedure 54(d) and 42 U.S.C. § 1988(b). There is no question that the plaintiffs are "prevailing parties" under Section 1988(b). Nevertheless, the City opposes the petition arguing that the sums requested by the plaintiffs are unreasonable, particularly in light of a pretrial offer of judgment made by the City to settle the case for $40,000.
To support its argument, the City points to Federal Rule of Civil Procedure 68, which provides that if an offer of settlement is rejected by the plaintiff and "the judgment finally obtained by the [plaintiff] is not more favorable than the offer, the [plaintiff] must pay the costs incurred after the making of the offer." Here, however, the judgment finally obtained by the plaintiffs exceeds the offer made by the defendant. The total damage award was $5,000 higher than the City's offer, and when the pre-judgment interest sum is added to that figure, the total verdict for the plaintiffs is $7,987.22 greater than the offer. Moreover, the City's offer expressly stated that the $40,000 was "inclusive of all interest, costs and attorney's fees that have accrued or that may be assessed by the Court." Def.'s Mem. in Opp'n, Ex. D. The additional right to payment of costs further increases the size of the plaintiff's award. See also Scheeler v. Crane Co., 21 F.3d 791, 793 (8th Cir. 1994) (reasonable attorney's fees and costs incurred by the plaintiff prior to the offer of judgment should be considered when deciding whether offer of judgment is greater than the total recovery). Since the total amount the plaintiffs will be awarded is substantially greater than the offer made by the defendants, Fed.R.Civ.P. 68 does not apply in letter or in spirit.
At the same time, prevailing plaintiffs do not automatically recover all the costs or fees they request, but only those that are "reasonable." This Court must first decide whether the plaintiffs' requests are reasonable. See 28 U.S.C. § 1988(b). The starting point for evaluating the amount of an attorney's fee award is the so-called "lodestar," the product of the number of hours of professional time reasonably devoted to the prosecution of the case and the reasonable hourly rate for such services. See Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 293 (1st Cir. 2001) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The plaintiffs' attorney has submitted an affidavit outlining the number of hours he worked and detailing the work he did during those hours. He states that he has worked a total of 183.95 hours and he requests payment at the rate of $300.00. He further states that he has incurred reimbursable costs in the amount of $1,137.17.
After a careful review of the documentation submitted by the plaintiffs, the Court finds that the hourly rate requested by the plaintiffs' attorney should be reduced to $225 per hour. In making this determination, I rely in part on my own observations made in the presentation of the case, as well as my general familiarity with the standards of practice and billing levels among attorneys practicing in this Court. Although the petition is supported by two affidavits from other attorneys in the Boston community that the rate of $300 per hour is fair and reasonable, I conclude that this rate is out of step with the fee rates that attorneys have been awarded in similar civil rights cases. See, e.g., Ciulla v. Rigny, 89 F. Supp.2d 97, 104 (D.Mass. 2000) (awarding attorney's fees in a civil rights case at a rate of $200 per hour); Zurakowski v. D'Oyley, 46 F. Supp.2d 87, 89 n. 2 (D.Mass. 1999) (awarding attorney's fees in a civil rights case at a rate of $240 per hour to "one of the foremost practitioners in this field"). In light of this overall reduction in the hourly rate from $300 to $225, no distinction shall be drawn between "core" and "non-core" activities. See Brewster v. Dukakis, 3 F.3d 488, 492 n. 4 (1st Cir. 1993) (noting that such distinctions are often made by the district court, but that a district court judge has "great discretion" when setting a reasonable fee award); Sys. Mgmt., Inc. v. Loiselle, 154 F. Supp.2d 195, 209 n. 2 (D.Mass. 2001) (separation of core from non-core activities is discretionary, and was not appropriate in the instant case).
The plaintiffs' statement of expense costs is reasonable, and the City does not raise any objections to the plaintiffs' itemized statement of their expenses. The Court therefore awards costs in the amount requested by the plaintiffs.
In sum, this Court awards the plaintiffs attorney's fees at the rate of $225 per hour for 183.95 hours, for a total of $41,366.25 in attorney's fees, as well as $1,137.17 for costs, for a total award of $42,503.42.