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finding that hourly rate of $350 was appropriate for an attorney with twenty years of experience litigating a case of limited complexity with a three-day, "relatively straightforward" trial
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CV 15-1791 (GRB)
2020-02-03
Wayne TORCIVIA, Plaintiff, v. SUFFOLK COUNTY, New York, et al., Defendants.
Amy L. Bellantoni, The Bellantoni Law Firm, LLP, Scarsdale, NY, for Plaintiff. Arlene S. Zwilling, Suffolk County Attorney, Hauppauge, NY, Defendants County Suffolk, Police Officer James Adler, Investigator Thomas Carpenter, Captain William Scrima. Anthony M. Maffia, Catherine Ann Brennan, Scott G. Christesen, Fumuso, Kelly, Swart, Farrell, Polin and Christesen LLP, Hauppauge, NY, for Defendant Mary Catherine Smith. Ralph Pernick, New York State Attorney General, Mineola, NY, Elyce Noel Matthews, NY OAG, New York, NY, for Defendants Kristen Steele, Dianna D'Anna, Adeeb Yacoub.
Amy L. Bellantoni, The Bellantoni Law Firm, LLP, Scarsdale, NY, for Plaintiff.
Arlene S. Zwilling, Suffolk County Attorney, Hauppauge, NY, Defendants County Suffolk, Police Officer James Adler, Investigator Thomas Carpenter, Captain William Scrima.
Anthony M. Maffia, Catherine Ann Brennan, Scott G. Christesen, Fumuso, Kelly, Swart, Farrell, Polin and Christesen LLP, Hauppauge, NY, for Defendant Mary Catherine Smith.
Ralph Pernick, New York State Attorney General, Mineola, NY, Elyce Noel Matthews, NY OAG, New York, NY, for Defendants Kristen Steele, Dianna D'Anna, Adeeb Yacoub.
MEMORANDUM & ORDER
GARY R. BROWN, United States District Judge:
Before the Court are cross motions for attorneys' fees and costs by plaintiff Wayne Torcivia and defendants Suffolk County, Suffolk County Police Officers James Adler, Robert Verdu and Patrick Halpin, Suffolk County Police Captain William Scrima and Suffolk County Police Department Investigator Thomas Carpenter (collectively "County Defendants"). Docket Entries ("DE") 185, 189. For the following reasons, the cross motions are GRANTED in part and DENIED in part.
BACKGROUND
Familiarity with the facts and procedural history are presumed. Plaintiff commenced this action by filing a complaint on April 2, 2015. DE 1. All defendants answered the complaint, and the case proceeded to discovery. DE 9, 14, 16; Minute Entry dated Apr. 14, 2016. On February 23, 2017, plaintiff filed an amended complaint asserting federal claims of violations of the First, Second, Fourth, and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, and state law claims of unlawful imprisonment and defamation against Stony Brook University Hospital's Comprehensive Psychiatric Emergency Program ("CPEP") employees Kirsten Steele, Dianna D'Anna, Dr. Adeeb Yacoub, Bridget Walsh, Timothy J. Aiello, and Michelle Sanchez, CPEP Intern Mary Catherine Smith (collectively "CPEP Defendants"), County Defendants, and several John Doe Police Officers. Am. Compl., DE 66. All defendants filed answers to the amended complaint. DE 71-73, 76. On December 14, 2017, the Court so-ordered a stipulation dismissing the action against defendants Timothy Aiello, Michelle Sanchez and Bridget Walsh. DE 92. The remaining parties then filed cross motions for summary judgment.
Following a pre-motion conference, plaintiff filed a letter voluntarily agreeing to withdraw with prejudice numerous state and federal claims. DE 124. On March 29, 2019, the Honorable LaShann DeArcy Hall, United States District Judge, ruled on the cross motions for summary judgment as follows:
the County Defendants' motion for summary judgment is DENIED in part and GRANTED in part. Plaintiff's Monell claims arising from the seizure of Plaintiff's weapons, Second Amendment claims, and all claims against Thomas Carpenter and William Scrima are dismissed. Plaintiff's motion for summary judgment is DENIED in part and GRANTED in part. The Court finds that the County Defendants deprived Plaintiff of post-deprivation due process under the Fourteenth Amendment by failing to hold a hearing with respect to his long arms. All of Plaintiff's remaining Fourteenth Amendment due process claims are dismissed. The CPEP Defendants' and CPEP Intern Smith's motions for summary judgment are GRANTED and all claims against them are dismissed. Plaintiff's motion to withdraw certain causes of actions [DE 124] is also GRANTED.
Summ. J. 45, DE 148.
The parties then consented to U.S. Magistrate Judge jurisdiction for all purposes, and the undersigned presided over the case as a U.S. Magistrate Judge. DE 154. On the eve of trial, plaintiff and County Defendants agreed that damages as to the Fourteenth Amendment post-deprivation due process claim was $100.00 and consented to the undersigned to enter an order of damages accordingly. A jury trial was held from November 6, 2019 to November 8, 2019 where plaintiff presented several witnesses and a rebuttal case. The jury found the County Defendants not liable at trial. DE 179
On November 12, 2019, the Court issued the following order: "The parties consented to the undersigned to calculate damages to be awarded from plaintiff's Fourteenth Amendment due process post-deprivation claim. For the avoidance of doubt, given the sole evidence adduced at trial that damages for the recovery of the long arms was $100.00, said figure is the appropriate damage amount as to this claim." Stipulation and Order dated Nov. 12, 2019. Therefore, the Clerk of the Court issued a judgment for plaintiff to recover $100.00 from defendant Suffolk County for the Fourteenth Amendment post-deprivation due process claim. DE 183.
Plaintiff and County Defendants then filed cross motions for attorneys' fees. DE 185, 189. County Defendants seeks attorneys' fees of $75,836.25 and costs of $723.95. Zwilling Aff. ¶¶ 16-19, DE 189. Plaintiff seeks attorney's fees of $124,627.50 and costs of $8,108.93. Pl.'s Br. 15, DE 186. Plaintiff filed a notice of appeal on December 13, 2019. DE 190.
DISCUSSION
a. Attorney's Fee Award for County Defendants
Title 42 U.S.C. § 1988 allows an attorney's fee award to prevailing defendants in a civil rights lawsuit filed pursuant to 42 U.S.C. § 1983. Fox v. Vice , 563 U.S. 826, 833, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011). For defendants to be a prevailing party, they must "achieve some ‘material alteration of the legal relationship of the parties,’ [that is] judicially sanctioned." Manhattan Review LLC v. Yun , 919 F.3d 149, 153 (2d Cir. 2019) (quotations omitted); see also Opoku v. Cty. of Suffolk , 123 F. Supp. 3d 404, 411 (E.D.N.Y. 2015). This includes a party who secures a judgment on the merits, Carter v. Inc. Vill. of Ocean Beach , 759 F.3d 159, 163 (2d Cir. 2014), a voluntary dismissal with prejudice, id. at 165, or a defense jury verdict, LeBlanc-Sternberg v. Fletcher , 143 F.3d 765, 768 (2d Cir. 1998). The defendant does not have to prevail on every claim to be a prevailing party. See CRST Van Expedited, Inc. v. E.E.O.C. , ––– U.S. ––––, 136 S. Ct. 1642, 1650, 194 L.Ed.2d 707 (2016) ; see also Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Human Res. , 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) ; Texas State Teachers Ass'n v. Garland Indep. Sch. Dist. , 489 U.S. 782, 790, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989).
Section 1988 only authorizes a district court to award attorney's fees to a defendant "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Fox , 563 U.S. at 833, 131 S.Ct. 2205. A claim is frivolous "when it lacks an arguable basis either in law or in fact." Shakur v. Selsky , 391 F.3d 106, 113 (2d Cir. 2004) ; see also Opoku v. Cty. of Suffolk , 123 F. Supp. 3d 404, 411 (E.D.N.Y. 2015). A claim is non-frivolous "where plaintiff has made a sufficient evidentiary showing to forestall summary judgment and has presented sufficient evidence at trial to prevent the entry of judgment against him as a matter of law." Opoku , 123 F. Supp. 3d at 413 (citing LeBlanc–Sternberg , 143 F.3d at 771 ).
Where there are frivolous and non-frivolous claims, " Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim." Fox , 563 U.S. at 836, 131 S.Ct. 2205 ; see also Carter , 759 F.3d at 163. As the Court explained, "if a defendant would have incurred [fees to defend against frivolous claims] anyway, to defend against non -frivolous claims, then a court has no basis for transferring the expense to the plaintiff." Fox , 563 U.S. at 836, 131 S.Ct. 2205.
The Supreme Court has cautioned that "it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success." Christiansburg Garment Co. v. E.E.O.C. , 434 U.S. 412, 421-22, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) ; see also Fox , 563 U.S. at 833-34, 131 S.Ct. 2205 ; Opoku , 123 F. Supp. 3d at 410 ("it should be rare for a prevailing defendant in a § 1983 case to be awarded attorney's fees" because of the "concern[s] about the potential chilling effect on § 1983 plaintiffs—who are the chosen instrument of Congress to vindicate a policy of national priority.").
Here, County Defendants are prevailing parties because the Court granted summary judgment in favor of the County Defendants as to several federal claims, Summ. J. 45, entered plaintiff's voluntary dismissal with prejudice numerous claims, id. , and County Defendants secured a defense verdict at trial.
Nonetheless, County Defendants are not entitled to an award of attorney's fees because they failed to demonstrate what fees they would not have paid but for a frivolous claim. Plaintiff certainly has some non-frivolous claims. See Stipulation and Order dated Nov. 12, 2019 ($100.00 in Fourteenth Amendment post-deprivation due process claim); Summ. J. (claims surviving summary judgment and judgment as a matter of law, and proceeding to jury verdict). However, County Defendants on this motion failed to articulate which claims were frivolous, and therefore, failed to demonstrate what attorneys' fees were "incurred because of, but only because of, a frivolous claim." Cf. Fox , 563 U.S. at 836, 131 S.Ct. 2205.
Instead, County Defendants argue in a conclusory fashion that they are entitled to attorneys' fees because County Defendants "fully and completely prevailed on every claim [at trial]" based upon the "jury's quick rejection" of those claims. Defs.' Br. 7-8, DE 189-5. The Court rejects this "post hoc reasoning" that the Supreme Court expressly warned against. Cf. Christiansburg , 434 U.S. at 421-22, 98 S.Ct. 694 ; Fox , 563 U.S. at 833-34, 131 S.Ct. 2205. Furthermore, defense counsel's records of hours expended contain no documentation as to the attorney's fees that County Defendants sustained due to one or more frivolous claims. See Zwilling Aff. ¶ 18; id. at Ex. B. In other words, by failing to allocate hours to specific claims, counsel has made it impossible to determine which fees were improperly incurred, if any. Therefore, defense counsel's motion for attorneys' fees is denied.
b. County Defendants' Costs
County Defendants pursue a taxable cost of $723.95 for transcribing plaintiff's deposition, which was used to impeach plaintiff at trial, under Local Civil Rule 54.1. Zwilling Aff. ¶ 7; Defs.' Br. 9. Plaintiff does not respond to this argument. See generally Pl.'s Br.; Pl.'s Reply Br. Therefore, this request is granted on the merits and as unopposed.
While the invoice for the transcript has a balance due of $723.95, Zwilling Aff. Ex. C, defense counsel's brief states the cost of the transcript was $2,112.95, Defs.' Br. 9.
Federal Rule of Civil Procedure 54(d)(1) permits courts "to award costs to prevailing defendants ‘[u]nless a federal statute provides otherwise.’ " Carter v. Inc. Vill. of Ocean Beach , No. 07-CV-1215(SJF)(ETB), 2013 WL 816257, at *1 (E.D.N.Y. Mar. 4, 2013), aff'd , 759 F.3d 159 (2014) ; see also Hadid v. City of New York , No. 15-CV-19 (WFK)(RER), 2018 WL 3999018, at *1 (E.D.N.Y. July 31, 2018), report and recommendation adopted , Order dated Aug. 15, 2018 (same standard for prevailing defendant). While Rule 54(d)(1) "codifies a venerable presumption that prevailing parties are entitled to costs, ... the decision to award costs ultimately lies within the sound discretion of the district court." Id. An award of costs under Rule 54 is the "normal rule," and "the losing party has the burden to show that costs should not be imposed." Harris v. Brown , No. 08-CV-1703 MKB, 2013 WL 632247, at *1 (E.D.N.Y. Feb. 20, 2013) (citation omitted); see also Carter , 2013 WL 816257, at *2 (discussing the "opposite presumption" when awarding attorney's fees to prevailing defendants). A court in its discretion may deny costs because of, among other things, "misconduct by the prevailing party, the public importance of the case, the difficulty of the issues, or the losing party's limited financial resources." Id.
As Judge Spatt held,
Local Rule 54.1(c)(2) is clear and unequivocal when it stated that costs are allowed for an original and copy of a transcript "is taxable if the deposition was used or received in evidence at the trial." Notwithstanding this rule, the cases have established the sensible rule that the costs of depositions not used at the trial may nevertheless be taxed for costs where they "appear to have been reasonably necessary to the litigation at the time they were taken."
Palm Bay Int'l, Inc. v. Marchesi Di Barolo S.P.A. , 285 F.R.D. 225, 235 (E.D.N.Y. 2012).
Here, County Defendants are entitled to the presumption that costs should be awarded. Furthermore, County Defendants effectively used plaintiff's deposition transcript to impeach plaintiff at trial, and is thus, the deposition transcript "appeared to have been reasonably necessary to the litigation at the time they were taken." Cf. Palm Bay Int'l, Inc. , 285 F.R.D. at 235. Plaintiff makes no such showing that County Defendants are not entitled to such an award. Cf. Harris , 2013 WL 632247, at *1. Therefore, the Court awards County Defendants costs of $723.95.
c. Attorneys' Fee Award for Plaintiff
Title 42 U.S.C. § 1988 authorizes an attorney's fee award to prevailing plaintiffs in a civil rights lawsuit filed pursuant to 42 U.S.C. § 1983. James v. City of Boise , ––– U.S. ––––, 136 S. Ct. 685, 686, 193 L.Ed.2d 694 (2016) ; Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 550, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) ; Hensley v. Eckerhart , 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). "When a plaintiff succeeds in remedying a civil rights violation ... he serves ‘as a private attorney general,’ vindicating a policy that Congress considered of the highest priority." Fox , 563 U.S. at 833, 131 S.Ct. 2205 (2011) (citations omitted). As such, "plaintiffs may be considered ‘prevailing parties’ for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Farrar v. Hobby , 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley , 461 U.S. at 433, 103 S.Ct. 1933 ); see also Texas State Teachers Ass'n , 489 U.S. at 791, 109 S.Ct. 1486. The Supreme Court has described this standard as "generous" since nominal damages of one dollar are enough to bring plaintiff across the "prevailing party" threshold. Farrar , 506 U.S. at 112, 113 S.Ct. 566 ; see also Barbour v. City of White Plains , 700 F.3d 631, 634 (2d Cir. 2012) (citing Farrar , 506 U.S. at 115, 113 S.Ct. 566 ).
Here, plaintiff qualifies as a "prevailing party" under § 1988 as plaintiff established a Fourteenth Amendment post-deprivation due process claim as against defendant Suffolk County. Stipulation and Order dated Nov. 12, 2019. Therefore, the remaining question is what fee award to plaintiff is considered "reasonable." See Hensley , 461 U.S. at 433, 103 S.Ct. 1933 ; see also Farrar , 506 U.S. at 114-15, 113 S.Ct. 566 ("In some circumstances, even a plaintiff who formally ‘prevails’ under § 1988 should receive no attorney's fees at all.").
Ruling on the fee application is appropriate at this juncture even though plaintiff has filed a notice of appeal. First, Suffolk County has not appealed the judgment as to Fourteenth Amendment post-deprivation due process claim, and an award will be unaffected by the appeal. See Mhany Mgmt. Inc. v. Inc. Vill. of Garden City , 44 F. Supp. 3d 283, 285 (E.D.N.Y. 2014). Second, deciding the motion now should permit the parties enough time to consolidate any appeal of this order, which avoids disfavored piecemeal litigation. See Barrella v. Vill. of Freeport , 56 F. Supp. 3d 169, 173 (E.D.N.Y. 2014) ; see also Fox , 563 U.S. at 838, 131 S.Ct. 2205 (citation omitted) ("the determination of fees ‘should not result in a second major litigation’ ").
1. Lodestar
"Both the [Second Circuit] and the Supreme Court have held that the lodestar—the product of a reasonable hourly rate and the reasonable number of hours required by the case–creates a ‘presumptively reasonable fee.’ " Millea , 658 F.3d at 166. "The lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable’ attorney's fee." Perdue , 559 U.S. at 553, 130 S.Ct. 1662 ; see also Millea , 658 F.3d at 167. "[T]he lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case." Perdue , 559 U.S. at 551, 130 S.Ct. 1662. "The reasonable hourly rate is the rate a paying client would be willing to pay ... bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Lilly v. City of New York , 934 F.3d 222, 231 (2d Cir. 2019).
"The burden is on the party seeking attorney's fees to submit sufficient evidence to support the hours worked and the rates claimed." Maldonado v. Srour , No. 13-CV-5856 (ILG)(JO), 2016 WL 5864587, at *1 (E.D.N.Y. Oct. 6, 2016). "The moving party ‘must support its application by providing contemporaneous time records that detail ‘for each attorney, the date, the hours expended, and the nature of the work done.’ ’ " Riley v. City of New York , No. 10-CV-2513 (MKB), 2015 WL 9592518, at *2 (E.D.N.Y. Dec. 31, 2015) (quoting N.Y. Ass'n for Retarded Children, Inc. v. Carey , 711 F.2d 1136, 1148 (2d Cir. 1983) ). "District courts have broad discretion, using their experience with the case, as well as their experience with the practice of law, to assess the reasonableness of each component of a fee award." Feltzin v. Union Mall, LLC , 393 F. Supp. 3d 204, 212 (E.D.N.Y. 2019) (citation omitted).
A. Reasonable Hourly Rate
Plaintiff's counsel is the only attorney who worked on this case, and she seeks an hourly rate of $450.00. Pl.'s Br. 9, DE 186. Suffolk County argues that the approved hourly rate should be $350.00. Defs.' Br. 21.
The Second Circuit instructed district courts to consider "all case-specific variables" including factors set forth in Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714 (5th Cir. 1974) in determining the reasonable hourly rate. Lilly , 934 F.3d at 230. The Court "need not robotically ‘recite and make separate findings as to all twelve of the Johnson factors.’ " Vanacore v. Expedite Video Conferencing Servs., Inc. , No. 14-CV-6103 (GRB), 2019 WL 96243, at *1 (E.D.N.Y. Jan. 3, 2019) (quoting L.I. Head Start Child Dev. Servs., Inc. v. Econ. Opportunity Comm'n of Nassau Cty., Inc. , 865 F. Supp. 2d 284, 291 (E.D.N.Y. 2012), aff'd , 710 F.3d 57 (2d Cir. 2013), and amended, 956 F. Supp. 2d 402 (E.D.N.Y. 2013) ); see also Lilly , 934 F.3d at 233 ("strict application of the Johnson method of calculating attorney's fees used by the Fifth Circuit is too imprecise and variable to be reliable ...").
The twelve Johnson factors are: "(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." Lilly , 934 F.3d at 228 (citing Johnson v. Georgia Highway Exp., Inc. , 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron , 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) ).
Under the "forum rule," this Court must use the prevailing hourly rate in the Eastern District of New York in calculating the reasonable hourly rate. Vanacore , 2019 WL 96243, at *1 ; see also Haylett v. Sutton , No. 15-CV-223 (WFK)(PK), 2019 WL 8128547, at *2-3, 2019 U.S. Dist. LEXIS 134712, at *6 (E.D.N.Y. Aug. 8, 2019) ; Martinez v. City of New York , 330 F.R.D. 60, 69 (E.D.N.Y. 2019) ; Feltzin , 393 F. Supp. 3d at 213 n.6. "In recent years, fees have been awarded in the Eastern District of New York at an hourly rate of $300 to $450 for partners, $100 to $325 for associates, and $70 to $100 for paralegals in fee-shifting cases." Feltzin , 393 F. Supp. 3d at 212 ; see also Haylett , 2019 WL 8128547, at *2-3, 2019 U.S. Dist. LEXIS 134712, at *6-7 ("$300-$450 for partners, $200-$325 for senior associates, and $100-$200 for junior associates"); Martinez , 330 F.R.D. at 70. "The highest rates in this district are reserved for expert trial attorneys with extensive experience before the federal bar, who specialize in the practice of civil rights law and are recognized by their peers as leaders and experts in their fields." Feltzin , 393 F. Supp. 3d at 212 ; see also Martinez , 330 F.R.D. at 70 ; Anderson v. County of Suffolk , 2016 WL 1444594, at *4. Such attorneys have typically shown involvement in teaching and speaking engagements and other academic and professional achievements, writing published in scholarly and professional journals, or appearances as an expert in the media, etc. Hugee v. Kimso Apartments, LLC , 852 F. Supp. 2d 281, 300 (E.D.N.Y. 2012).
Counsel provides no authority that rates for partners reach $500 per hour in this District. See Pl.'s Br. 10 (citing Haylett , 2019 WL 8128547, at *,3 2019 U.S. Dist. LEXIS 134712, at *8 ). In fact, the cited case holds that the prevailing rate in the Eastern District of New York is "$300-$450 for partners." Haylett , 2019 WL 8128547, at *2-3, 2019 U.S. Dist. LEXIS 134712, at *6-7 ; see also Martinez , 330 F.R.D. at 70 ("an hourly fee of $ 500 – the rate requested here – is highly unusual in a civil rights case").
Here, counsel's requested rate of $450.00, the highest rate in this District, is inappropriate. Counsel's affidavit lacks indicia that she qualifies for the high rate in this District. See generally Bellantoni Aff., DE 187. Plaintiff's counsel cites to a recent award of an hourly rate of $400.00 in the Southern District of New York. Cocuzza v. Rockland Cty., New York , No. 17-CIV-8217(KMK)(PED), 2019 WL 6498915, at *5 (S.D.N.Y. Nov. 7, 2019), report and recommendation adopted , 2019 WL 6498092 (S.D.N.Y. Dec. 2, 2019). However, the rates in the Southern District of New York are higher than the rates in this District. See Simmons v. New York City Transit Auth. , 575 F.3d 170, 177 (2d Cir. 2009) ; see also Martinez , 330 F.R.D. at 69. Upon review, this is the first time plaintiff's counsel seeks attorney's fees in the Eastern District of New York. The rate awarded in this case should be lowered to reflect the prevailing rate in this District.
Plaintiff's counsel has been an attorney for twenty years. She previously served as a Senior Assistant District Attorney in New York State, and was assigned to the New York State Attorney's General Organized Crime Task Force. Counsel has been practicing in the area of civil rights litigation with a focus on firearms-related litigation since 2009. Bellantoni Aff. ¶¶ 1-6, DE 187. Counsel's experience makes clear that her hourly rate must fall within the range for partner.
However, various case-specific factors justify awarding a lower hourly rate. The complexity of this matter is limited. See Lilly , 934 F.3d at 231-32. This litigation has lasted five and a half years. Discovery was complex. See, e.g. , Electronic Order dated Nov. 1, 2016. On the other hand, the case became less complex as plaintiff withdrew many claims with prejudice before summary judgment. See DE 92; DE 124. After summary judgment, only a few claims against the County Defendants remained to be tried, and all claims against CPEP Defendants were dismissed.
The trial, which lasted three days, was relatively straightforward. The evidence presented was testimony from several civilian witnesses and police officers, and the case involved no expert or scientific evidence. Factual questions boiled down to two discrete issues, which were posed to the jury in a special verdict sheet. The jury quickly rendered a verdict. DE 183. Considering all case-specific factors, and what a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively, the Court finds that an hourly rate of $350.00, as argued by Suffolk County, appropriate for plaintiff's counsel.
B. Reasonable Hours
Plaintiff seeks to be compensated for 276.95 hours expended on the Fourteenth Amendment legal work, and plaintiff has already reduced many of the billing entries in connection with now-dismissed CPEP Defendants. Pl.'s Br. 13, 14. Travel time and fees expended on the attorney's fee application will be analyzed separately.
"The party seeking attorney's fees also bears the burden of establishing that the number of hours for which compensation is sought is reasonable." Anderson , 2016 WL 1444594, at *5 (citation omitted). Courts are empowered to reduced claimed hours that are "excessive, redundant or otherwise unnecessary." Cocuzza , 2019 WL 6498915, at *5 (citation omitted); see also Hensley , 461 U.S. at 434, 103 S.Ct. 1933. A district court is not obligated to undertake a line-by-line review of a fee application; it may instead, "exercise its discretion and use a percentage deduction as a practical means of trimming fat." Marion S. Mishkin Law Office v. Lopalo , 767 F.3d 144, 150 (2d Cir. 2014). The critical inquiry is "whether at the time the work was performed, as reasonable attorney would have engaged in similar time expenditures." Cocuzza , 2019 WL 6498915, at *5 (quoting Grant v. Martinez , 973 F.2d 96, 99 (2d Cir. 1992) ).
i. Clerical Tasks
District courts have the discretion to apply an across-the-board reduction of hours billed for time spent on clerical tasks or block-billed time entries reflecting a mix of clerical and legal work. Lilly , 934 F.3d at 233 (finding no abuse of discretion on this ground even when counsel is a solo practitioner); see also Cocuzza , 2019 WL 6498915, at *6. Clerical tasks include "sending and receiving faxes, requesting and receiving medical records, serving papers, and hand-delivering courtesy copies of filings to the courthouse," Lilly , 934 F.3d at 234, and preparing a summons and complaint for service, ECF filings, entering dates into a calendar, and communications regarding ordering a court reporter, Cocuzza , 2019 WL 6498915, at *7.
Counsel's time sheets reveal a variety of clerical tasks as well as entries that blend clerical tasks with legal tasks. See, e.g. , Entries dated 7/2/14 (.50 hour on "Prepare Notices of Claim for mailing, draft cover letters, mail/serving"); 4/2/15 (.75 hour on "Review of ECF filing rules, opened case on EDNY ECF, filed complaint, proposed summons, and civil cover sheet"); 5/7/15 (.75 hour on "Processed complaint for service on hospital personnel"); 5/7/15 (.30 hour on "Draft and ECF Proposed (3) summons for Suffolk County"); see also Entries dated 10/14/15; 10/27/15; 11/3/15; 5/18/16; 7/11/16 to 7/18/16; 10/26/16; 11/22/16; 12/5/16; 12/6/16; 5/10/17; 3/12/18. The Court applies a 10% reduction of all hours billed to reflect time spent on clerical tasks. See Lilly , 934 F.3d at 234 (no abuse of discretion for 10% reduction).
ii. Success
Under Hensley v. Eckerhart , 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), "plaintiff's success is a crucial factor in determining the proper amount attorney's fees under 42 U.S.C. § 1988. Anderson , 2016 WL 1444594, at *7 (citing Hensley , 461 U.S. at 440, 103 S.Ct. 1933 ; Stanczyk v. City of New York , 752 F.3d 273, 284-85 (2d Cir. 2014) ); see also Green v. Torres , 361 F.3d 96, 99 (2d Cir. 2004) ; Saber v. New York State Dep't of Fin. Servs. , No. 15-CV-5944 (LGS)(SDA), 2019 WL 4781781, at *3 (S.D.N.Y. Sept. 6, 2019), report and recommendation adopted , 2019 WL 4747670 (S.D.N.Y. Sept. 30, 2019).
Plaintiff argues that her successful Fourteenth Amendment post-deprivation due process claim is intertwined with her unsuccessful claims because "the issues raised and facts to be developed relating to Plaintiff's Fourteenth Amendment post-deprivation claim are not confined to Plaintiff's request for a hearing and Suffolk County's failure to provide one." Pl.'s Br. 14.
"In fixing the lodestar the court may exclude any hours spent on severable unsuccessful claims." Green , 361 F.3d at 98 (citing Hensley , 461 U.S. at 435, 103 S.Ct. 1933 ). Where plaintiff's claims are "intertwined," " ‘[a]ttorney's fees may be awarded for unsuccessful claims as well as successful ones.’ " Id. at 98 & n.2. Claims are intertwined when they are based on a " ‘common core of facts,’ ‘related legal theories,’ or ‘require essentially the same proof.’ " Sanchez v. First Class Home Improvement, LLC , No. 16-CV-2064 (DRH)(ARL), 2019 WL 4593484, at *5 (E.D.N.Y. Sept. 23, 2019) (quoting Kerin v. U.S. Postal Serv. , 218 F.3d 185, 194 (2d Cir. 2000) ). As a general matter, "such unrelated claims are unlikely to arise with great frequency." Chen v. Cty. of Suffolk , 927 F. Supp. 2d 58, 74 (E.D.N.Y. 2013) (quoting Hensley , 461 U.S. at 435, 103 S.Ct. 1933 ).
In Chen v. County of Suffolk , out of eight federal and state claims alleged in the complaint, only excessive force claim went to trial, and two out of three defendant police officers were found liable; Judge Hurley held that "[b]ecause all of the claims arose out of the September 6, 2006 incident, it is difficult to divide the hours expended on a claim-by-claim basis and deduct those hours associated with any unsuccessful claims." Id. at 74-75 ; see also Green , 361 F.3d at 98 n.2 (citing Webb v. Sloan , 330 F.3d 1158, 1169 (9th Cir. 2003) ("even without commonality of law, plaintiff's claims were related for the purpose of awarding fees where all of the plaintiff's ‘claims arose out of a common core of facts and a common course of conduct: [p]laintiff's arrest, detention, and prosecution.’ "); L.I. Head Start Child Dev. Servs., Inc. , 865 F. Supp. 2d at 297 ("the two unsuccessful causes have a partial common core of facts with the successful causes of action but do not share related legal theories").
Here, plaintiff's successful Fourteenth Amendment post-deprivation due process claim is intertwined with all of plaintiff's unsuccessful claims. All the claims arose out of an April 6, 2014 incident where plaintiff's daughter called a social services hotline, which caused defendant police officers to respond to plaintiff's residence. Plaintiff was then removed to CPEP. Afterwards defendant police officers returned to plaintiff's home and retrieved plaintiff's pistols and long arms from plaintiff's home. See generally Trial Tr.; Summ J. 3-7. Thus, it is difficult to divide the hours expended on this litigation by a claim-by-claim basis. Cf. Chen , 927 F. Supp. 2d at 74-75 ; Green , 361 F.3d at 98 n.2.
Even where successful and unsuccessful claims are "interrelated, nonfrivolous, and raised in good faith," the full lodestar may still constitute an excessive fee award where "plaintiff has achieved only a partial or limited success." Green , 361 F.3d at 99 (quoting Hensley , 461 U.S. at 436, 103 S.Ct. 1933 ); see also Saber , 2019 WL 4781781, at *3 ; Sanchez , 2019 WL 4593484, at *7. Courts must "focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Green , 361 F.3d at 99 (citing Hensley , 461 U.S. at 435, 103 S.Ct. 1933 ); see also Chen , 927 F. Supp. 2d at 74 (citing Hensley , 461 U.S. at 435, 103 S.Ct. 1933 ). As the Second Circuit explained, "[a] district court's assessment of the ‘degree of success’ achieved in a case is not limited to inquiring whether a plaintiff prevailed on individual claims ... Both ‘the quantity and quality of relief obtained,’ as compared to what the plaintiff sought to achieve as evidence in her complaint, are key factors in determining the degree of success achieved." Barfield v. New York City Health & Hosp. Corp. , 537 F.3d 132, 152 (2d Cir. 2008). The court further explained,
Hensley warns that ‘[t]here is no precise rule or formula’ for adjusting the lodestar to account for limited success... As the Supreme Court explained, ‘[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for limited success. The court necessarily has discretion in making this equitable judgment.
Green , 361 F.3d at 99 (citing Hensley , 461 U.S. at 436, 103 S.Ct. 1933 ).
Courts may also consider claims that are voluntarily withdrawn in this analysis. Id. ; see also Saber , 2019 WL 4781781, at *5. Courts have applied an across-the-board reduction as high as 60% due to limited success. L.I. Head Start Child Dev. Servs., Inc. , 865 F. Supp. 2d at 297 (collecting cases); see also Murray v. Coleman , 232 F. Supp. 3d 311, 317-18 (W.D.N.Y. 2017) (holding that a 50% reduction of warranted under § 1988 in a public employee's § 1983 action alleging First Amendment retaliation); Sanchez , 2019 WL 4593484, at *7 (applying a reduction of 35% for limited success).
Here, plaintiff has achieved very limited success. In terms of quantity of relief, plaintiff has only recovered $100.00 for the Fourteenth Amendment post-deprivation due process claim, which is small compared to the injunctive relief and damages requested in the Amended Complaint, Am. Compl. 32, DE 66. In terms of the quality of relief, plaintiff has achieved success as to a very limited fact set. Much of the work was not necessary to achieve the limited, focused success of the case. Put another way, the reasons underlying the removal of plaintiff's firearms—the primary focus of the discovery and trial—are entirely irrelevant to the procedural failure in not granting a post-deprivation hearing.
To be clear, plaintiff did obtain a vindication of a constitutional right, and presumably a change in the County's procedural practices concerning that right, which is no small matter. Thus, the award of fees here is appropriate, but just as to that limited legal issue. At the same time, the complaint in this matter incorporated allegations against police officers and others (including a social work student intern, dismissed earlier), which as demonstrated at trial, were wholly without merit. These allegations served to embroil these officers and other defendants—who were simply trying to exercise their responsibilities in very difficult circumstances—in years of needless litigation. See, e.g. , Southerland v. City of New York , 681 F.3d 122, 137-38 (2d Cir. 2012) (Jacobs, C.J., dissenting) ("An individual defendant has at stake his savings, his pension, the equity in his home, the kids' college fund: This should tell us something about the threshold of liability [in Section 1983 cases] ...."); Anaba v. Cty. of Suffolk , No. 11-CV-1987 (ADS)(GRB), 2014 WL 1411770 at *12 (E.D.N.Y. Apr. 11, 2014) ("the disruption, inconvenience and scrutiny that accompany civil litigation can have serious impact on individual defendants, including in such matters as career development, applying for a new position or obtaining loans."). For the reasons set forth herein, an award of attorneys' fees against plaintiff is not warranted, but that should not suggest that the defendant police officers bear any culpability here. DE 183 (judgment only as to defendant Suffolk County).
Furthermore, plaintiff voluntarily withdrew claims against defendants Timothy Aiello, Michelle Sanchez and Bridget Walsh. DE 91, 92. Following a pre-motion conference, plaintiff filed a letter voluntarily agreeing to withdraw with prejudice numerous state and federal claims. DE 124. After summary judgment, only a few claims against the County Defendants remain to be tried, and all claims against CPEP Defendants were dismissed. Summ. J. 45. Finally, the jury quickly returned a verdict in favor of the County Defendants at trial. DE 183.
Therefore, the Court applies a reduction in the number of hours by 40% due to limited success.
d. Travel
As to the hourly rate for travel, "travel time is appropriately reimbursed at one-half of the determined hourly rate." Cabrera v. Schafer , No. 12-6323 (ADS)(AKT), 2017 WL 9512409, at *13 (E.D.N.Y. Feb. 17, 2017) (citing Hugee , 852 F. Supp. 2d at 302 ); see also Hugee , 852 F. Supp. 2d at 302 (citing Perdue , 559 U.S. at 548, 130 S.Ct. 1662 ) ("apparently approving of district court's decision to ‘half [ ] the hourly rate for travel hours’ ")). Because the approved hourly rate is $350.00 per hour, the reasonable hourly rate allowed is $175.00 per hour.
Out of the 276.95 hours requested, plaintiff billed 89.25 hours for travel, or approximately one-third of the total hours billed. See Entries dated 2/25/16, 4/14/16, 9/12/16, 11/21/16, 12/13/16, 1/23/17, 3/27/17, 3/27/17, 4/25/17, 4/25/17, 5/18/17, 5/18/17, 5/18/17, 5/19/17, 5/19/17, 7/11/17, 7/12/17, 10/5/17, 11/3/17, 11/3/17, 11/28/17, 5/30/18, 5/16/19, 5/16/19, 11/5/19, 11/5/19, 11/6/19, 11/6/19, 11/7/19, 11/7/19.
Courts may exclude travel hours that are excessive, redundant or otherwise unnecessary. See Feltzin , 393 F. Supp. 3d at 215-16 ; Swartz v. HCIN Water St. Assocs., LLC , No. 17-CV-4187 (ER), 2018 WL 5629903, at *6 (S.D.N.Y. Oct. 31, 2018) ; Feltzin v. Ciampa Whitepoint LLC , No. 15-CV-2279 (JBW)(PK), 2017 WL 570761, at *3 (E.D.N.Y. Feb. 13, 2017) ; U.S. ex rel. Feldman v. Van Gorp , No. 03-CV-8135 (WHP), 2011 WL 651829, at *3 (S.D.N.Y. Feb. 9, 2011). Where the prevailing plaintiff retained an out-of-district attorney, courts have completely excluded the travel time unless those attorneys can demonstrate "the case required special expertise beyond the competence of forum district law firms." See Feltzin , 2017 WL 570761, at *3 (quoting Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona , 188 F. Supp. 3d 333, 345 (S.D.N.Y. 2016) ); see also Feltzin , 393 F. Supp. 3d at 215-16 ; Swartz , 2018 WL 5629903, at *6 ; Feldman , 2011 WL 651829, at *3.
Here, the hours billed for travel—the 89.25 out of the 276.95 hours—are problematic for several reasons. First, it seems unlikely that the so called "reasonable, paying client" would accept such a travel-work ratio. Cf. Lilly , 934 F.3d at 231. Second, part of those travel expenditures results from plaintiff's selection of counsel from outside this District. This factor alone has been used to deny an award for attorney's fees for travel time in its entirety. See, e.g. , Feltzin , 393 F. Supp. 3d at 215-16 ; Swartz , 2018 WL 5629903, at *6 ; Feltzin , 2017 WL 570761, at *3 ; Feldman , 2011 WL 651829, at *3. While counsel points to her expertise in firearms law, Bellantoni Aff. ¶ 6, the vast bulk of this litigation involved matters other than the firearms law. Indeed, the trial over which the undersigned presided involved exclusively excessive force-type claims for which there are many qualified counsel located a short distance from the Central Islip federal courthouse. Moreover, counsel failed to establish that local counsel lacked appropriate experience to handle firearms litigation. See Bellantoni Aff. ¶ 6. Therefore, a further reduction of fees expended on travel is appropriate.
The Court reduces the hours expended on travel by 65%, yielding 31.24 hours. This reflects what a reasonable, paying client would be willing to pay. At the hourly travel rate of $175.00, this figure yields fees of $5,467.00. Therefore, the Court awards $5,467.00 for travel.
e. Fees on Fees
Plaintiff's counsel seeks compensation for 11.5 hours worked on attorney's fee application, Entries dated 11/19-19-11/22/19, and 10.4 hours worked on reply papers and opposition to County Defendants' fee application, Bellantoni Reply Aff. ¶ 3 & Ex. 3, DE 192.
Unless expressly prohibited by the terms of a Federal Rule of Civil Procedure 68 offer, a district court can award attorney's fees for hours expended on an attorney's fee application—so-called "fees on fees." See Lilly , 934 F.3d at 235 ; see also Hines v. City of Albany , 862 F.3d 215, 223 (2d Cir. 2017). However, the hours expended must be reasonable. Anderson , 2016 WL 1444594, at *9. Courts have held that up to thirty hours to be reasonably spent in preparing and defending fee application. See, e.g. , Johnson v. City of New York , No. 11-CV-6176 (ENV) (CLP), 2016 WL 590457, at *7 (E.D.N.Y. Feb. 11, 2016) ; see also Anderson , 2016 WL 1444594, at *9 (holding 21.26 hours reasonable).
Here, counsel expended 21.9 hours on the attorney's fee applications, and such hours are reasonable. Applying the approved hourly rate of $350.00, the Court awards $7,665.00 for fees on fees.
f. Plaintiff's Costs
Plaintiff seeks costs of $8,108.93. Suffolk County argues that none of the plaintiff's requested costs are taxable under Local Rule 54.1, including deposition transcripts of Dianna D'Anna, Dr. Adeeb Yacoub, Kirsten Steele, Bridget Walsh, CPEP Intern Mary Catherine Smith, Michelle Sanchez, and Geraldine Azus. Defs.' Br. 21-22.
The Second Circuit has held for a prevailing plaintiff, "attorney's fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients. LeBlanc-Sternberg , 143 F.3d at 763. "Identifiable, out-of-pocket disbursements for items such as photocopying, travel, and telephone costs are generally taxable under § 1988 and are often distinguished from nonrecoverable routine office overhead, which must normally be absorbed within the attorney's hourly rate." Id. (citation omitted); Chabad Lubavitch of Litchfield Cty., Inc. v. Borough of Litchfield , No. 09-CV-1419 (JCH), 2018 WL 2332075, at *12-13, 2018 U.S. Dist. LEXIS 86432, at *40 (D. Conn. 2018) (holding costs include court fees, filing fees, attorney travel expenses, and printing and binding fees). Vague entries such as "photocopies" without a general description of documents, and "postage" without a description of what was being mailed will be disallowed. Anderson , 2016 WL 1444594, at *10.
As for deposition transcripts, "it is well-established that the expenses recoverable under fee-shifting statutes such as 42 U.S.C. § 1988 are not limited to the costs taxable under 28 U.S.C. § 1920 and Local Civil Rule 54.1." Garcia v. City of New York , No. CV 11-2284, 2013 WL 5574507, at *9 (E.D.N.Y. Oct. 9, 2013) ; see also Chabad Lubavitch of Litchfield Cty., Inc. , 2018 WL 2332075, at *12-13, 2018 U.S. Dist. LEXIS 86432, at *40 ; Tolnay v. Wearing , No. 02-CV-1514 (EBB), 2007 WL 3171284, at *1, 2007 U.S. Dist. LEXIS 79453, at *2 (D. Conn. Oct. 25, 2007) ; Tsombanidis v. City of West Haven , 208 F. Supp. 2d 263, 286 (D. Conn. 2002). Therefore, deposition transcripts are recoverable under § 1988. Garcia , 2013 WL 5574507, at *9 ; Tsombanidis , 208 F. Supp. 2d at 286 ; see also Johnson v. Mauro , No. 16 CV 622 (BKS/ML), 2019 WL 5842765, at *10 (N.D.N.Y. Nov. 7, 2019).
Here, the costs consist of complaint filing, service of summons and complaint, deposition transcripts, travel expenses, copying costs, and service of trial subpoenas. Except for one vague entry labeled "Postage" for $0.98, the costs are reasonable. See 187-1 at 37. Therefore, the Court awards plaintiff $8,107.95 in costs.
g. Summary
The lodestar calculation can be summarized as follows: The approved hourly rate is $350.00 per hour. The 276.95 hours requested is subtracted by 89.25 hours is billed for travel, and 11.5 hours for fees on fees. The adjustment to the hours requested will apply to 176.2 hours, which will be reduced by 10% for work done on clerical tasks, and 40% to account for limited success. Accordingly, the approved hours are 88.1 hours. Multiplying $350.00 per hour times 88.1 hours yields a lodestar of $30,835.00.
The following table summarizes the total attorney's fees and costs awarded to plaintiff:
Lodestar $30,835.00 Travel $5,467.00 Fees on Fees $7,665.00 Plaintiff's Costs $8,107.95 County Defendants' Costs ($723.95) Total Award to Plaintiff $51,351.00
A departure from the lodestar is not warranted here. The lodestar calculation includes "most, if not all," the relevant factors in setting the reasonable attorney's fees. Millea , 658 F.3d at 167. Furthermore, "[f]actors that are already subsumed in the lodestar calculation cannot be used to enhance or cut the lodestar amount." Lilly , 934 F.3d at 231.
Lastly, the Court is mindful that "[t]he whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery." See Millea , 658 F.3d at 168 (emphasis original). The case, which has extended five years and culminated in a jury trial represents a substantial effort to vindicate plaintiff's constitutional right. Cf. id. The attorney's fee award here fulfills the purpose of fee-shifting statutes by "assuring that civil rights claims of modest value can attract competent counsel." Id. Viewed at this macro level, the total award to plaintiff appears similarly reasonable.
CONCLUSION
Based on the foregoing, the cross motions are GRANTED in part and DENIED in part. Defendant Suffolk County shall pay to plaintiff a total award of $51,351.00 in attorney's fees and costs. The Clerk of the Court is directed to enter judgment and close the case.