Opinion
CV-00-6106 (CPS)
November 20, 2003
MEMORANDUM AND ORDER
Plaintiff George Neilson brings this action against defendants Anthony D'Angelis and Louis Bianculli, alleging, among other things, that defendants deprived him of his right under the Fourteenth Amendment to the United States Constitution to equal protection of the laws in violation of 42 U.S.C. § 1983. The matter was tried before the undersigned and a jury from May 6, 2003, to May 14, 2003. The jury returned a verdict in plaintiff's favor as to this claim. On July 7, 2003, the Court denied a renewed motion by defendants for judgment as a matter of law as to this claim. Plaintiff now moves pursuant to 42 U.S.C. § 1988 for an award of attorneys fees and costs in the amount of $219,760.81. For the reasons set forth below, plaintiff is awarded attorneys fees and costs in the amount of $184/531.95.
Plaintiff asserted several other claims in this action. The nature and disposition of each of these claims are get forth below.
BACKGROUND
The following facts are taken from the parties' submissions and are essentially undisputed.Plaintiff is a senior court officer employed by New York State's Office of Court Administration (the "OCA"). In his amended complaint, plaintiff asserted federal equal protection claims against the State of New York, Bruce Markowitz, and Anthony Delgado, as well as against D'Angelis and Bianculli. Plaintiff also asserted the following claims against all of the defendants: (1) interference with his right to access the courts under the First and Fourteenth Amendments to the United States Constitution and comparable provisions of the New York State Constitution; (2) deprivation of liberty and property interests under the Due Process Clause of the United States Constitution; (3) age discrimination under the United States Constitution, 42 U.S.C. § 1983, New York Executive Law § 296, and Hew York City Administrative Code § 8-107(1); (4) denial of equal protection of the laws under the Hew York State Constitution; (5) unlawful conspiracy under § 1985 and New York common law; (6) prima facie tort under New York common law; (7) intentional infliction of emotional distress under Hew York common law; (8) unlawful retaliation under § 1983 and the First Amendment to the United States Constitution; (9) unlawful retaliation under Hew York Executive Law § 296 and Hew York City Administrative Code § 3-107(7); and (10) defamation under Hew York common law. All of plaintiffs claims arise out of allegations that the individual defendants, all of whom worked for the OCA, falsely accused him of mishandling an encounter with a porter and of vandalizing Markowitz' car.
On September 10, 2002, plaintiff withdrew the first six claims enumerated above. In a Memorandum and Order dated December 20, 2002, I granted a motion for summary judgment dismissing the seventh and eighth claims, the ninth claim as against defendant Markowitz, the federal equal protection claim as against defendant Markowitz, and all of the claims asserted against the State of New York. During the trial, I granted a motion for judgment as a matter of law dismissing the ninth claim as against all of the defendants, the tenth claim as against all of the defendants other than defendant Markowitz, and all of the claims asserted against defendant Delgado,
In support of his federal equal protection claims against D'Angelis and Bianculli, plaintiff argued at trial that these defendants treated him differently from several other employees when they disciplined him for allegedly mishandling an encounter with the porter. In support of his defamation claim against Markowitz, plaintiff argued that Markowitz had falsely accused him of vandalizing a car. These three claims were submitted to the jury. The jury returned a verdict in favor of plaintiff on the equal protection claims against D'Angelis and Bianculli and in favor of defendant Markowitz on the defamation claim. The jury found D'Angelis and Bianculli liable for $6,200 in lost wages and $11,600 in emotional and mental distress.
Plaintiff is represented by the law firm of Cardinale, Hueston Marinelli. Richard Cardinale, Michael Hueston, and Robert Marinelli, all partners at this firm, have twelve, nine, and eleven years of litigation experience, respectively. Cardinale and Hueston have significant experience, and Marinelli has some experience, with civil rights actions.
Plaintiff seeks compensation at an hourly rate of $300 for the 751.9 hours that Cardinale, Hueston, and Marinelli spent litigating his equal protection claims against D'Angelis and Bianculli ($225,569.80); compensation at an hourly rate of $150 for the 14.5 hours that these attorneys spent traveling ($2,175.00); and compensation at an hourly rate of $50 for the 28.7 hours that the firm's paralegal worked on this case ($1,435.00). Because plaintiff reduced the amount of compensation he seeks by five percent to account for any time that might have been excessive or unnecessary, he seeks a total of $217,720.81 in fees.
Defendants argue in response that the compensation for the time spent on certain activities must be reduced or excluded because these activities advanced claims on which plaintiff did not prevail at trial, that any compensation for the time spent on certain other activities must be reduced or excluded because the time was excessive or the activity unnecessary, that the total amount of compensation for the time that the attorneys spent working on this case must be reduced by two-thirds "to reflect the minimal success achieved in this litigation," and that the compensation for this time should be calculated using an hourly rate of $200. (Timon Decl. at 9.)
Plaintiff also seeks $2,040 in costs. Defendants do not oppose the request for costs.
Specifically, plaintiff seeks to recover the following coats; $150 fee for commencing the present action; $1,090 for deposition transcripts; $50 for the process server, $320 for sight subpoenas; and $440 for 4,400 photocopies.
DISCUSSION
The awarding of attorneys fees in civil rights actions is governed by 42 U.S.C. § 1988(b), which states in relevant part:
In any action or proceeding to enforce a provision of [the federal civil rights laws], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
The parties agree that plaintiff is a prevailing party and that he is entitled to an award of attorneys fees. However, they dispute the amount of that award.
To qualify as a prevailing party, a plaintiff must obtain at least some relief on the merits of his or her claims, See Farrar v. Hobby, 506 U.S. 103, 111 (1992); Raishevich v. Foster, 247 F.3d 337, 345 (2d Cir. 2001); Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir. 1591) (holding that a party who achieves only partial success may be considered a prevailing party).
In this Circuit, there is "a presumption that successful civil rights litigants should recover an attorney's fee unless special circumstances would render such an award unjust," Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1992); accord Raishevich, 247 F.3d at 345.
Time Spent on Unsuccessful Claims
"In determining reasonable attorney's fees, the district court must calculate a `lodestar' figure based upon the number of hours reasonably expended by counsel on the litigation multiplied by a reasonable hourly rate." Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997). The court should exclude "hours dedicated to sever able unsuccessful claims, " but it may include time dedicated to unsuccessful claims "where they are `inextricably intertwined'" with the successful claims and "involve a common core of facts or are based on related legal theories." Quarantino v. Tiffany Co., 166 F.3d 422, 426 (2d Cir. 1999). "There is no precise rule or formula for making these determinations," however, and the court can either "identify specific hours that should be eliminated" or "simply reduce the award to account for the limited success." Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983).
Defendants argue that the Court should exclude; (1) 29 minutes spent reviewing a "letter regarding comparables defendants Markowitz and Delgado" (Timon Decl. at 2); (2) 737 minutes reviewing the depositions of Bianculli, D'Angelis, Delgado, and Markowitz; (3) two-thirds of the 403 minutes spent reviewing the statement of facts submitted by defendants in support of their summary judgment motion and researching plaintiff's equal protection and conspiracy claims; (4) half of the 65 minutes spent reviewing documents concerning Markowitz and Bianculli; and (5) two-thirds of the 9,494 minutes spent trying this case. They also argue that the Court should further reduce the compensable attorney time by two-thirds to reflect the limited success obtained in this litigation.
The first disputed item concerns counsel's consideration of "comparables" — individuals who were similarly situated to plaintiff, but who were treated differently than he. Because such facts supported plaintiff's equal protection claims against D'Angelis and Bianculli, plaintiff is entitled to an award of fees for the time spent on this activity.
The time records submitted by plaintiff's counsel do not specify the portion of the time spent on the remaining four disputed items that was devoted to the claims on which plaintiff prevailed at trial. Plaintiff argues that the Court should include all of the time spent on these activities because all of his claims involve a common core of facts. While many of plaintiff's claims, like his federal equal protection claims against D'Angelis and Bianculli, rest in part on his allegation that defendants falsely accused him of mishandling an encounter with a porter, some of them involve facts underlying the entirely different issue whether Markowitz defamed him by accusing him of vandalizing a car. Plaintiff essentially concedes that he is not entitled to recover fees for time spent on his unsuccessful claims when he states that he "is not seeking compensation for time spent developing and prosecuting any claims other than his claim of a denial of equal protection" and that he "omitted" the time spent on his other claims from the time records. (Pl.'s Mem. at 8.) Accordingly, plaintiff's request for fees must be reduced to account for the time spent on the unrelated vandalism issue.
Defendants do not argue that the time records are therefore boo vague to support plaintiff's motion, See, e.g., Hensley 461 U.S. at 437 n. 12 (noting that counsel "should identify the general subject matter of his time expanditures" but "is not required to record in great detail how each minute of his time was expended").
Plaintiff's counsel spent 737 minutes reviewing the depositions of four defendants. The depositions of D'Angelis, Bianculli, and Delgado discuss the OCA's disciplinary procedures in general, as well as the disciplinary actions that were taken against plaintiff after the encounter with the porter and against other employees for different incidents, Markowitz' deposition discusses both the accusations of vandalism and the disciplinary actions that were taken against one of the individuals with whom plaintiff sought to compare himself at trial in establishing his equal protection claims against D'Angelis and Bianculli. Accordingly, it appears appropriate to reduce the amount of time for which plaintiff may recover fees in connection with the second disputed item by ten percent to account for the time spend on the vandalism incident.
With respect to the second disputed item — the work on the summary judgment motion — the statement of facts submitted by defendants in support of their summary judgment motion addressed the incident with the porter. However, the legal research that plaintiff's counsel performed with respect to the conspiracy claims "cannot be deemed to have been in pursuit of the ultimate result achieved." Hensley, 461 U.S. at 435 (internal quotation marks omitted), Accordingly, the Court will reduce the amount of time for which plaintiff may recover fees in connection with the third disputed item by one-third to account for the work on claims that were not successful.
With respect to the work done on document review, it is likely that most of the information obtained in reviewing documents concerning Bianculli helped to advance plaintiff's successful claims. It is unlikely that anything useful obtained from reviewing Markowitz' documents advanced plaintiff's successful claims. Accordingly, the Court will reduce the amount of time for which plaintiff may recover fees in connection with document review by one-half.
Plaintiff's attorneys spent most but not all of their time at trial presenting evidence about the OCA's disciplinary procedures, the encounter with the porter, the disciplinary actions taken against plaintiff after that encounter, and the disciplinary actions taken against other employees. Accordingly, the Court will reduce the amount of time for which plaintiff may recover fees in connection with the time spent at trial by one-third,
"[T]he extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C, § 1988." Id. at 440. However, plaintiff excluded from his request most of the time that his attorneys spent on his unsuccessful claims, and the Court has excluded the balance of that time. While plaintiff prevailed on only one of his eleven claims and against only two of the five defendants, he obtained redress for the injuries he suffered as a result of the hour spent reviewing and drafting responses to two sets of interrogatories and requests for the production of documents. In response to defendants' objections, plaintiff volunteered to reduce by five percent the time for which he seeks to recover fees. No further reduction is necessary. See Kirsch, 148 F.3d at 173,
Applicable Rate
The hourly rate applied must be "in line with those 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). The relevant "community" from which this rate should be derived is "the district in which the court sits," Polk v. New York State Dep't of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983), Plaintiff seeks compensation at an hourly rate of $300, and defendants seek compensation at an hourly rate of $200.
The hourly rates applied in recent cases in this District have ranged from $200 to $300 for time spent by partners. See McGrath v. Toys "r" Us, 2002 U.S. Dist. LEXIS 22610 at *13-14 (E.D.N.Y. Oct. 8, 2002) (awarding fees at hourly rates of $225 and $250 for non-trial time and $300 for trial time); Stavitsky v. Bd. of Elections in N. Y., 198 F. Supp.2d 271, 274 (E.D.N.Y. 2002) ("[F]ee awards in recent cases in the Eastern District of New York have ranged from $200 to $275 for partners."); Fink v. City of New York, 154 F. Supp.2d 403, 407 (E.D.N.Y. 2001) ("Fee awards in other recent Eastern District of New York cases have ranged from $200 to $250 for partners."). After considering the prevailing rates in this District and the particular skill, experience, and reputation of Cardinale, Hueston, and Marinelli in a recent case, this Court rejected a request for a hourly rate of $300 for non-trial work performed by these attorneys and found that an hourly rate of $250 was "more appropriate." Matthews v. City of New York, Mo. CV 01 2739, at 12 (Aug. 27, 2003). In another recent case, this Court awarded fees at an hourly rate of $250 for an attorney's non-trial work and $300 for the same attorney's trial work. See McGrath, 2002 U.S. Dist. LEXIS 22610, at *14. Accordingly, the Court will apply an hourly rate of $250 for the non-trial work and $300 for the trial work.
Calculation of Award
Plaintiff is entitled to $147,415.28 in fees for 589.66 hours of the time that Cardinale, Hueston, and Marinelli spent litigating this case before and after trial and $31,646.67 in fees for 105.49 hours of the time that these attorneys spent trying this case. The parties agree that he is also entitled to $2,066,75 for the 14.5 hours that these attorneys spent traveling; $1,363.25 for the 28.7 hours that the firm's paralegal spent working on this case; and $2,040,00 in costs.
CONCLUSION
For the foregoing reasons, plaintiff is awarded fees and costs in the amount of $184,531.95.
The Clerk is directed to furnish a filed copy of the within to all parties.
SO ORDERED.