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finding hourly rate of $100 reasonable
Summary of this case from Silva v. Legend Upper W. LLC.Opinion
1:17-cv-03847 (JGK)
06-28-2018
SHINE WILLIAMS, Plaintiff, v. METRO-NORTH RAILROAD COMPANY, Defendant.
Report & Recommendation TO: THE HONORABLE JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE
FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
BACKGROUND
Plaintiff Shine Williams ("Plaintiff"), a transmale, has worked as a Coach Cleaner at Defendant Metro-North Commuter Railroad Company ("Metro-North") since 2010. Williams' assigned birth gender was female. Since he was a child, he has lived and been recognized by his family, community and prior employers as a male.
Upon commencing employment with Metro-North, Williams used the male locker room. In September 2010, after co-workers questioned whether Williams should be using the male locker room, Metro-North asked Williams to use a single-user bathroom. According to Williams, the single-user bathroom had a sign that said "Female Foreman," which Metro-North refused to remove and which caused Williams humiliation. Thereafter, Williams states his co-workers harassed and ridiculed him because of his gender non-conformity. In 2014, Williams complained to Human Resources about his co-worker's conduct. He states he was denied overtime in retaliation for filing the internal complaint.
Williams retained Outten & Golden ("O&G") in 2014 to represent him in connection with discrimination and retaliation he felt he was experiencing at work. On December 24, 2014, O&G filed a Charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") on Williams' behalf. The parties attempted to mediate with the EEOC, but were unable to resolve Williams' claims. The EEOC then undertook an extensive investigation and, on August 14, 2016, issued a determination of cause on the merits, concluding that Williams was "a victim of sex discrimination" because of "his transgender status, and sex-based stereotyping." (Doc. No. 1, Ex. 1.)
According to Williams, the EEOC's probable cause finding did not end the discrimination and retaliation. Hence, on April 18, 2016, O&G filed a second EEOC Charge on Williams' behalf. While that Charge was pending, a co-worker sexually assaulted Williams at work. O&G advised Williams on how to report the crime to the Manhattan District Attorneys' office ("DA"). Metro-North conducted an investigation of the assault and terminated the co-worker. The DA prosecuted the co-worker, but the co-worker ultimately was acquitted by a jury. Williams was diagnosed with Post-Traumatic Stress Disorder following the assault, requiring him to take a leave of absence from work. O&G also advised Williams about his leave. Unable to reach a settlement during the agency proceedings, Williams received Notices of Right to Sue Metro-North in court.
Prior to bringing a court action, O&G asked the Transgender Legal Defense & Education Fund, Inc. ("TLDEF") to join them as co-counsel because of TLDEF's expertise in cases involving transgender rights.
On May 22, 2017, O&G and TLDEF filed the complaint in this action (the "Complaint", Doc. No. 1) on Plaintiff's behalf asserting claims of discrimination based on his gender identity and gender non-conformity and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000 et seq.; the New York State Human Rights Law ("NYS HRL"), N.Y. Exec. Law §§ 296 et seq.; and the New York City Human Rights Law ("NYC HRL"), N.Y. Admin. Code §§ 8-107 et seq. Metro-North denied the allegations.
On November 27, 2017, and prior to substantial discovery taking place, this Court held a settlement conference. Both parties were well-prepared for the conference but were unable to reach a resolution.
Shortly after the conference, Metro-North served an Offer of Judgment pursuant to Federal Rule of Civil Procedure 68 ("Rule 68"). This led to negotiation of a settlement in the amount of approximately $250,000 for Williams. The parties were not able to agree on attorneys' fees and agreed, instead, to submit the issue of attorneys' fees to this Court.
LEGAL STANDARD
A district court exercises "considerable discretion" in awarding attorneys' fees. Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008); see also Millea v. Metro-North R. R. Co., 658 F.3d 154, 166 (2d Cir. 2011); "The party seeking fees bears the burden of demonstrating that its requested fees are reasonable." TufAmerica Inc. v. Diamond, No. 12-cv-3529 (AJN), 2016 WL 1029553, at *3 (S.D.N.Y. Mar. 9, 2016), reconsideration granted in part, No. 12-cv-3529 (AJN), 2016 WL 3866578 (S.D.N.Y. July 12, 2016), and on reconsideration in part, No. 12-cv-3529 (AJN), 2018 WL 401510 (S.D.N.Y. Jan. 12, 2018) (citing Blum v. Stenson, 465 U.S. 886, 897 (1984)).
Attorneys' fees are awarded by determining a presumptively reasonable fee, or a "lodestar," reached by multiplying a reasonable hourly rate by the number of hours reasonably expended. TufAmerica Inc., 2016 WL 1029553, at *3 (citing Millea, 658 F.3d at 166); see also Bergerson v. N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 289-90 (2d Cir. 2011). When evaluating hourly rates, the Court looks at "what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively." Bergerson, 652 F.3d at 289 (internal citations and quotation marks omitted). The Second Circuit's "forum rule" generally requires use of "the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee." Id. (internal citation and quotation marks omitted); see also TufAmerica Inc., 2016 WL 1029553, at *5 (rate must be "in line with those rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation"). Courts in this district also have recognized that an "attorney's customary billing rate for fee-paying clients is ordinarily the best evidence of" a reasonable hourly rate. In re Stock Exchanges Options Trading Antitrust Litig., No. 99-cv-0962 (RCC), 2006 WL 3498590, at *9 (S.D.N.Y. Dec. 4, 2006). Finally, the Court may adjust base hourly rates to account for case-specific variables. Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 183-184.
When evaluating hours expended, the Court must make "a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended." Haley v. Pataki, 106 F.3d 478, 484 (2d Cir. 1997) (quoting Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) (per curiam)). In determining whether hours are excessive, "the critical inquiry is whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures." Samms v. Abrams, 198 F.Supp. 3d 311, 322 (S.D.N.Y. 2016) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). "Hours that are excessive, redundant, or otherwise unnecessary, are to be excluded . . . and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application." Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (internal citations and quotation marks omitted); accord Alicea v. City of New York, 272 F. Supp. 3d 603, 608-09 (S.D.N.Y. 2017) (quoting Kirsch, 148 F.3d at 173); TufAmerica Inc., 2016 WL 1029553, at *3.
The Court also looks at the nature of the legal matter and reason for the fee award in considering what is a reasonable rate and reasonable time spent on a matter. Complex cases requiring particular attorney skills and experience may command higher attorney rates, as may cases requiring retention of a firm with the resources needed to prosecute a case effectively. Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 185-87.
Under Title VII, an award of attorneys' fees belongs to the prevailing plaintiff, and not to the plaintiffs' attorneys. See Soliman v. Ebasco Servs. Inc., 822 F.2d 320, 322 (2d Cir. 1987) ("[I]ndependent of his client, an attorney has no personal right to an award of statutory attorney's fees under [Title VII]."). The statute plainly provides that the court "in its discretion may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 2000e-5(k).
DISCUSSION
Plaintiffs' fee application seeks fees in connection with two phases of work that his attorneys performed on his behalf: (1) representation from retention through the date of the settlement ("Merits Phase"); and (2) preparation of the fee application ("Fee Application Phase"). Two partners, three associates, six paralegals and several law clerks from O&G worked on the case during the Merits Phase. Additionally, the Executive Director, a Senior Staff Attorney and two Staff Attorneys from TLDEF worked on the case during the Merits Phase. The total fees sought in connection with the Merits Phase are $564,759.50. Approximately $110,259 was incurred in connection with work performed before the EEOC; approximately $380,471 was incurred between filing the Complaint through the settlement; and approximately $47,130 was incurred in connection with negotiation of the settlement agreement. (Witkin ¶ 9.) The total attorney hours for this phase were 926.90 by O&G lawyers and 143.4 hours by TLDEF lawyers. The total paralegal and law clerk hours for this phase were 259.90. (Doc. No. 53 pp. 2-3.)
One partner, two associates, and two paralegals from O&G worked on the fee application. The Senior Staff Attorney from TLDEF also worked on the fee application. Finally, O&G retained Leon Friedman, a sole practitioner, to assist with the fee application. The total fees sought in connection with the Fee Application Phase are $53,261.50. The total attorney hours for the Fee Application Phase were 72.7 hours by O&G, 12.7 hours by TLDEF and 28.7 hours by Mr. Friedman. The total paralegal hours for this phase were 14.4. (Id.)
The total fees Plaintiff seeks for both phases, $613,770.50, stand in stark contrast with those billed by Metro-North's counsel in this matter. Lead defense counsel states that his firm billed Metro-North $111,099 from the time the EEOC charge was filed through the mediation and offer of judgment. (Declaration of Eric D. Witkin, "Witkin Decl.", Doc. 60 ¶ 10.) The Court recognizes, however, that Metro-North's internal legal department handled most of the work on the case before the EEOC, and that defense counsel's time does not include time spent negotiating a settlement agreement or opposing the fee application.
The hourly rates Plaintiff seeks for his lawyers and their staff are as follows:
| O&G Lawyers and Staff |
|---|
| O&G Lawyers |
| • Ms. Peratis: | $950 |
| • Mr. Lopez: | $900 |
| • Ms. Lin: | $475 |
| • Ms. Biegelsen: | $325 |
| • Ms. Jean: | $275 |
| O&G Staff | |
|---|---|
| • Mr. Alter: | $260 |
| • Ms. Huang: | $260 |
| • Ms. Park: | $260 |
| • Mr. Truong: | $260 |
| • Mr. Durant: | $260 |
| • Law Clerks: | $245 |
| TLDEF Lawyers | |
| • Ms.Weiss: | $450 |
| • Ms. Levinsohn: | $450 |
| • Mr. Young: | $350 |
| • Ms. Helfant: | $250 |
| Additional Counsel - Fee Application Phase Only | |
| • Mr. Friedman: | $500 |
There is no doubt that all of the individuals who performed work are highly competent, a factor the Court considers in determining the appropriate fees to award. Lead co-counsel, O&G, are experienced, highly regarded members of the plaintiffs' employment bar in New York and nationally, with extensive experience in civil rights claims. Ms. Peratis, a partner at O&G and graduate of University of Southern California Law School, has been practicing law for nearly 50 years with a focus on civil rights and employment law. During her impressive career, she worked as executive director of the Women's Rights Project at the American Civil Liberties Union ("ACLU") where she worked closely with then Professor, now Justice, Ruth Bader Ginsburg preparing briefs in the United States Supreme Court and in United States Courts of Appeals. She is currently Co-Chair of O&G's Sexual Harassment Practice Group. Mr. Lopez, a partner at O&G and graduate of Harvard Law School, has been practicing law for 30 years. Mr. Lopez too has focused on civil rights and employment law during his career. Among other relevant experience, Mr. Lopez served as General Counsel of the EEOC from April 2010 to December 2016 and, prior to that position, served as a Senior Trial Attorney for the Civil Rights Division within the U.S. Department of Justice. Ms. Lin is an associate at O&G with eight years of experience. She graduated from City University of New York Law School where she was a Haywood Burns Fellow in Civil and Human Rights. Ms. Lin clerked for the Honorable Denny Chin of the U.S. Court of Appeals for the Second Circuit. She also received a prestigious public interest fellowship, the Skadden Fellowship, which allowed her to work at the Asian American Legal Defense & Education Fund where she litigated civil rights and other cases involving immigrant workers. She has worked at O&G since 2013. Ms. Biegelsen is an associate at O&G. She graduated magna cum laude from American University's Washington College of Law in 2015. Ms. Jean is an associate with O&G and 2017 graduate from UCLA School of Law. Prior to joining O&G, Ms. Jean served as a legal extern in UCLA's Title IX/Sexual Harassment Prevention Office. Mr. Alter and Ms. Huang are recent college graduates, graduating in 2016 and 2017, respectively. Ms. Park and Messrs. Truong and Durant all worked as paralegals for unspecified periods of time prior to joining O&G. (Doc. 54, Ex. F.)
Non-profit counsel TLDEF also are nationally recognized litigators with expertise in representing transgender clients. TLDEF is "committed to ending discrimination against transgender people, and to achieving equality for transgender people through education and through impact litigation." (Declaration of Donna M. Levinson "Levinsohn Decl.", Doc. 55 ¶ 2) Ms. Weiss was Executive Director of TLDEF from July 2016 through February 2018. She is a nationally recognized transgender rights attorney and law professor. She has over 30 years of experience and has focused on civil rights litigation with an exclusive focus on transgender rights since 2011. She is a 1986 graduate of Seton Hall Law School and also has a Ph.D. in Law, Policy and Society from Northeastern University. She has litigated a number of prominent cases involving transgender rights and has been recognized with a number of awards for her work. Ms. Levinsohn likewise has more than 30 years of experience focusing on commercial and employment litigation. She worked at two well-respected private law firms prior to joining TLDEF. She is a 1979 graduate of Harvard Law School. She has been an active advocate for transgender rights through her membership in several bar associations. Mr. Young is a 2012 graduate of Columbia Law School where he was Executive Managing Editor of the Columbia Journal of Gender and Law. He also served as a Post-Doctoral Scholar at Columbia from 2012 to 2014 focusing on transgender rights and race. Since then he has focused his practice on civil rights litigation with a special focus on transgender rights, including during his service as TLDEF's Director of Impact Litigation from July 2016 to May 2018. Ms. Helfant is a 2016 graduate of Benjamin N. Cardozo School of Law where she took part in a civil rights clinic. She also was a Public Service Scholars Fellow at Cardozo.
Finally, Mr. Friedman is a well-known litigator and law professor with special expertise in fee applications. He is the Joseph Kushner Distinguished Professor of Civil Liberties Law at Hofstra Law School and has taught Constitutional Law and a course on civil rights litigation for the last 44 years. He received his law degree with honors from Harvard Law School in 1960. His practice has focused on federal litigation. Among other experience, he was Associate Director of the Special Committee on Courtroom Conduct of the New York City Bar Association from 1970 to 1973, and co-authored a book called Disorder in the Court. He also served as a staff attorney with the ACLU and has been a law professor since 1974. He has argued over 50 civil rights cases in federal Courts of Appeals around the country and had considerable success representing his clients.
Recognizing the skill and experience of Plaintiff's counsel, the Court turns to the hourly rates sought and analyzes how many of the billed hours were usefully and reasonably expended.
1. Hourly Rates
Plaintiff bears the burden of demonstrating that his counsel's rates are reasonable. Blum, 465 U.S. at 895 n.11; see also Reiter v. Metro. Transp. Auth. of State of New York, No. 01-cv-2762 (GWG), 2007 WL 2775144, at *4 (S.D.N.Y. Sept. 25, 2007). In determining the appropriate fee, federal courts consider the following factors:
i. The time and labor required;Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989).
ii. The novelty and difficulty of the legal and factual issues;
iii. The skills demonstrated by the attorney during the representation;
iv. The preclusion of other employment due to taking on the matter;
v. The customary fee;
vi. Whether the fee is fixed or contingent;
vii. Time limitations imposed by the client or circumstances;
viii. The amount involved and results obtained;
ix. The experience, reputation and ability of the attorneys;
x. The "undesirability" of the case;
xi. The nature and length of the professional relationship with the client; and
xii. Awards in similar cases.
The Court first addresses the eighth factor. Although this case resulted in a settlement, the result was a good one for Plaintiff. It compensated him for time out on unpaid disability leave and provided additional desired benefits. Plaintiff's counsel's assistance at the EEOC no doubt led to the issuance of a probable cause finding - something that certainly contributed to the outcome of this case. Further, Metro-North does not dispute that Plaintiff is a prevailing party for purposes of this fee application. This entitles Plaintiff to a reasonable compensatory fee based on the facts of the case. Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), superseded by statute on other grounds as stated in Triunion Frozen Prods. Inc. v. Ingenieria Alimentaria del Matatipac, S.A. de C.V., No. 13-cv-1974 (DRH) (AKT), 2017 WL 933083, at *6 (E.D.N.Y. Feb. 10, 2017); 42 U.S.C. § 1988(b) (court, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the costs).
Consideration of the third and ninth factors justifies a relatively high hourly rate for Plaintiff's counsel. As is plain from their credentials summarized above and in more detail in their fee application, Plaintiff's counsel are of the highest quality with special expertise in the law of employment discrimination. This Court is well familiar with counsel's excellent reputation and observed their work in this case, which lived up to that reputation.
Consideration of the second and tenth factors also justifies a relatively high hourly rate for Plaintiff's counsel because this case most certainly involved novel and evolving legal theories - the extent to which discrimination on the basis of being gender non-conforming or transgender is covered by Title VII's prohibition on sex discrimination. Very few cases have addressed this issue, although recent decisions certainly point to a trend recognizing that transgender bias is synonymous with sex stereotyping, long ago found by the U.S. Supreme Court to be evidence of gender discrimination in a case where a woman "failed" to conform to society's "gender norms" such as wearing make-up and jewelry, Price Waterhouse v. Hopkins, 490 U.S. 228, 235, 249 (1989), superseded by statute on other grounds as stated in Burrage v. U.S., 571 U.S. 204, 213 n.4 (2014). The decisions reason that transgender bias is discrimination based on a person's "failure" to conform to his/her gender assigned at birth and societal expectations that the person should accept his/or her assigned gender by displaying outward manifestations of the assigned gender.
E.E.O.C. v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) (holding Title VII prohibits discrimination based upon employee's transgender and transitioning status); Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) (Title VII prohibits discrimination on the basis of sexual orientation); Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017) (applying a Title VII theory of sex stereotyping to find likelihood of success on merits of Title IX and Equal Protection claims against sex discrimination based upon exclusion of transgender student from bathroom consistent with his gender identity); Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc) (holding that sex discrimination under Title VII includes discrimination based upon sexual orientation); G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), vacated, 137 S. Ct. 1239 (2017) (vacated only in light of the Department of Education and Department of Justice's guidance, not on the merits).
The first, seventh and eleventh factors do not, in this Court's view, drive the determination of the appropriate hourly rate in this case. The procedural history of this case is typical of Title VII cases with pendent state and city claims. While it is true that the EEOC conducted an extensive investigation, the agency bore the laboring oar at that phase of the case. It also is not unusual for plaintiffs' employment counsel to become involved with a client prior to filing an EEOC charge and to provide counseling in connection with internal complaints, compliance with any internal investigations conducted by the employer, and other efforts to potentially mitigate real or perceived discrimination, harassment or retaliation. Thus, this Court does not view the length of time of the representation as unique or more extensive than normal.
The fourth, fifth, sixth and twelfth factors are critical to determining the appropriate rate. O&G charges hourly rates to many clients, but took Mr. Williams' case on a contingency basis, potentially forgoing paid work. (Declaration of Wayne N. Outten, "Outten Decl.", Doc. 54, Ex. G ¶¶ 5, 7-9.) Plaintiffs have provided evidentiary support that they charge paying clients the hourly rates they seek in this case, including redacted copies of engagement letters with paying clients reflecting the rates sought. (Id.; Doc. 54, Ex. H.)) Evidence showing that paying clients pay counsel at the rates sought typically is strong evidence that the rates requested are reasonable. In re Stock Exchanges Options Trading Antitrust Litig., 2006 WL 3498590, at *9-10 ; see also Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986) ("For lawyers engaged in customary private practice, who at least in part charge their clients on an hourly basis regardless of the outcome, the marketplace has set that value.") (internal citation and quotation marks omitted). The Court notes, however, that the engagement letters are dated 2017 and 2018 and do not reflect rates charged in 2014, 2015 and 2016. Plaintiff's counsel are not entitled to their current rates for all years of their representation of Plaintiff. Also, the Court is unable to discern whether the engagements were similar to the representation of Plaintiff. A higher rate may be charged for negotiation of a separation agreement for a high level executive than for a planned litigation given the anticipated duration of the matter, resources of the client, quantity and intensity of partner-level work required and other factors. Thus, the Court considers these rates, but also considers the rates awarded for similar types of litigations (that necessarily call for attorneys with similar skills and knowledge) in this District. See Brady v. Wal-Mart Stores, Inc., 455 F. Supp.2d 157, 207-08 (E.D.N.Y. 2006) (in context where court was evaluating rates charged in another district, it found that sample retainer agreements and other empirical evidence of the rate charged by plaintiff's law firm "provides little guidance in determining whether to approve a rate that exceeds the benchmark of recent decisions"), aff'd, 531 F.3d 127 (2d Cir. 2008).
In similar single-plaintiff litigations in this District, courts have awarded lower rates than O&G is seeking to similarly renowned plaintiffs' employment counsel. For example, in a 2015 case, the court awarded fees for an hourly rate of $650 to Deborah Raskin, a named partner in the law firm of Vladeck Raskin and Clark, P.C., who had over 35 years of experience in employment litigation and was the former President of the New York City Bar Association. Powell v. Metro One Loss Prevention Servs. Grp., 2015 U.S. Dist. LEXIS 168974, at *7, *9 (S.D.N.Y. Feb. 5, 2015) adopted by 2015 U.S. Dist. LEXIS 168963 (S.D.N.Y. Dec. 17, 2015). In addition, courts in this district generally award hourly rates of up to $300 per hour for senior associates with at least eight years of experience and between $125-$215 to associates with three years of experience or less. Apolinario v. Luis Angie Deli Grocery, Inc., No. 14-cv-2328 (GHW), 2015 U.S. Dist. LEXIS 97330, at *6-7 (S.D.N.Y. July 27, 2015); see also DeCastro v. City of New York, 2017 U.S. Dist. LEXIS 162737, at *13-14 (S.D.N.Y. Sept. 30, 2017) ("Courts in this district generally award fees at hourly rates between $150 and $275 for junior associates at law firms specializing in civil rights").
At the same time, this Court recognizes that lawyers from O&G have been awarded higher hourly rates than Ms. Raskin. For example, partners other than Ms. Peratis and Mr. Lopez have been awarded hourly rates of $875 and $850 in another civil rights litigation in this District. Houser v. Pritzker, No. 10-cv-3105, ECF No. 377 (S.D.N.Y. Sept. 20, 2016) (awarding hourly rates of $875 for partner; $850 for a senior counsel; $450 for an eighth year associate). Additionally, in 2008, Ms. Peratis was awarded fees at an hourly rate of $675 in a discrimination case. Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 544-45 (S.D.N.Y. 2008). Mr. Friedman also has been awarded $500 per hour (the rate he is seeking in this case) by a court in the Eastern District of New York. Restivo v. Nassau Cty., No. 06-cv-6720 (JS) (SIL), 2017 WL 3727366, at *3 (E.D.N.Y. Aug. 28, 2017).
Plaintiff points to other cases in which slightly higher rates have been approved in cases other than civil rights cases. (Doc. 62 at 7 (citing Au New Haven LLC v. YKK Corp., No. 15-cv-3411 (GHW) (SN), 2018 WL 333828, at *7 (S.D.N.Y. January 5, 2018) ("district courts have approved rates for experienced law firm partners in the range of $500 to $800 per hour and rates for law firm associates in the range of $200 to $450 per hour") (internal citations and quotations omitted)); Benihana Inc. v. Benihana of Tokyo LLC, No. 15-cv-7428 (PAE), 2017 WL 6551198, at *4 (S.D.N.Y. December 22, 2017) (awarding fees ranging from $350 to $750 per hour); Errant Gene Therapeutic, LLC v. Sloan-Kettering Institute for Cancer Research, 286 F. Supp. 3d 585, 588 (S.D.N.Y. 2018) (awarding experienced patent attorney $765 per hour).)
Although the U.S. Supreme Court has noted that "[i]t is intended that the amount of fees awarded [in civil rights litigation] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases. . . ." Blum, 465 U.S. at 893 (quoting Senate Report on the Civil Rights Attorney's Fees Award Act of 1976, S. Rep. 94-1011, at *6 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5913), this Court also must consider the special skills needed to prosecute the case, risks taken and what the marketplace will bear given the features of the case. DeCastro v. City of New York, No. 16-cv-3850 (RA), 2017 U.S. Dist. LEXIS 162737, at *8 (S.D.N.Y. Sept. 30, 2017) (reducing fees sought; noting "[i]n addition, this case was not particularly active before the offers of judgment were accepted: at that time, the parties had not engaged in any discovery or motion practice"); Lilly v. City of New York, No. 16-cv-322 (ER), 2017 U.S. Dist. LEXIS 129815, at *11-13 (S.D.N.Y. Aug. 15, 2017) (reducing requested hourly rate of experienced civil rights litigator from $650 to $450 given the "short and relatively straightforward nature of this case" which "lasted less than 10 months, required no depositions, and involved no substantial motions or briefings" and "was resolved six weeks after the failed mediation session"); Coakley v. Webb, No. 14-cv-8438 (ER), 2016 U.S. Dist. LEXIS 30780, at *9-10 (S.D.N.Y. Mar. 10, 2016) (finding that although Counsel's qualifications and experience supported an hourly rate near the top of the range, the lack of complexity and relatively brief duration of the case indicate that a $625 hourly rate was unreasonably high); United States ex rel. Doe v. Acupath Labs, Inc., No. 10-cv-4819 (LDW) (AKT), 2015 U.S. Dist. LEXIS 34506, at *22-26 (S.D.N.Y. Feb. 27, 2015) ("[n]otwithstanding the skill and reputation of plaintiffs' counsel," court reduced the hourly rate where the case was "not so unusual or complex" and considering the "straightforward nature of the work performed").
The Court also notes that Metro-North's lead counsel, a Harvard Law School graduate with over 45 years of experience and whose normal hourly rate is $575, charged Metro-North a discounted rate between $420 and $428 per hour for this case. (Witkin Decl. ¶ 11.) Defense counsel utilized one junior associate on the case, whose time was billed at $288 per hour. (Id. ¶ 12.) Defense counsel utilized one paralegal, whose time was billed at $100 per hour. (Id. ¶¶ 13-14.) Similarly, the Court notes that Plaintiff seeks hourly rates of only $500 for Mr. Friedman and $450 for Messes. Weiss and Levinsohn, both of whom have similar experience and credentials as lead defense counsel.
Keeping in mind that a reasonable hourly rate is what a paying client would pay for the matter wishing to spend the minimum necessary to litigate the case and all of the other factors discussed above, this Court believes that some of the rates sought by Plaintiff should be reduced. The Court recommends a rate of $800 per hour for Ms. Peratis and Mr. Perez in light of hourly rates approved for similarly experienced and qualified employment counsel in this District, rates previously approved for Ms. Peratis and O&G attorneys, and in light of the specific features of this case discussed at length herein. The Court recommends a higher rate than awarded in the Powell case and in the other cases in which Ms. Peratis was awarded a lower rate because the Court takes into consideration reasonable increases in hourly rates over time. The Court recommends that Ms. Lin's hourly rate be reduced to $425, which is on the higher side of rates awarded for attorneys with similar experience, but less than the rate sought by the more senior attorneys who worked on this case. The Court recommends that Mr. Young's and Ms. Biegelsen's rates be reduced to $300 given their similar years of experience and prevailing rates awarded to attorneys of their experience in this District. No change is recommended for Ms. Jean's rate of $275, which is similar to the rate charged by defense counsel for its junior associate and within the range of rates approved for junior associates in this District. The Court's recommendation also takes into account the quality of Plaintiff's counsel and the service O&G does for its clients, the community at large, and the bench and bar by taking on contingency matters to advance the law in important areas like transgender rights.
Finally, the Court finds the rates sought for paralegals and legal clerks are excessively high. Courts in this district typically award paralegal rates in the range of $100-150 per hour. Hollander Glass Texas, Inc. v. Rosen-Paramount Glass Co., Inc., 291 F.Supp. 3d 554, 562 (S.D.N.Y. 2018) (reducing paralegal rate to $75); Euro Pac. Capital, Inc. v. Bohai Pharm. Grp. Inc., No. 15-cv-4410 (VM) (JLC), 2018 WL 1229842, at *9 (S.D.N.Y. Mar. 9, 2018)(reducing paralegal rate to $150); Long v. HSBC USA, Inc., No. 14-cv-6233 (HBP), 2016 WL 4764939, at *11 (S.D.N.Y. Sept. 13, 2016) (finding that rates of $100 to $150 for paralegals are reasonable); TufAmerica, 2016 WL 1029553, at *6 (reducing the requested rate for paralegals to $150 to$175). Plaintiffs' paralegal rates should be reduced to $150 per hour, a rate far more in line with paralegal rates approved in this District - especially for junior paralegals. See TufAmerica, 2016 WL 1029553, at *6.Accordingly, this Court recommends that the rates for O&G's paralegals be reduced to $150 per hour and the rates for O&G's law clerks be reduced to $100 per hour.
2. Hours Billed
Turning next to hours billed, it is clear that Plaintiff's counsel spent an excessive amount of time on this case. This Court does not question, and indeed applauds, O&G's and TLDEF's zeal in representing Plaintiff. However, they could have shown just as much zeal in a far more efficient manner. The Court's overarching view of Plaintiff's billing records is that the same result for their client could have been achieved in considerably fewer hours.
During the Merits Phase, the Court notes the following allocation of a total of 1,330.2 work/hours: (1) three partner-level lawyers (Peratis, Lopez and Weiss) collectively spent 128.2 hours on the case; (2) two senior-level lawyers (Lin and Levinsohn) collectively spent 607.3 hours; (3) four junior to mid-level associates (Biegelsen, Jean, Young, Helfant) collectively spent 334.8 hours; and (4) paraprofessionals collectively spent 259.9 hours.
During the Fee Application Phase, the Court notes the following allocation of a total of 128.5 work/hours: (1) two partner-level lawyers (Peratis and Friedman) collectively spent 29.5 hours on the application; (2) two senior-level lawyers (Lin and Levinsohn) collectively spent 48.2 hours; (3) one junior associates collectively spent 36.4 hours; and (4) paraprofessionals collectively spent 14.4 hours.
There are certain tasks performed by Plaintiff's counsel that this Court recommends not be compensated at all. First, Metro-North correctly points out that some of the hours billed by Plaintiff's counsel are for tasks that were not expended working on this lawsuit or the mandatory EEOC procedure proceeding its filing and thus are not recoverable. For example, Metro-North estimates that Plaintiff's counsel spent approximately 25 hours at a cost of $11,614 counseling Plaintiff regarding how to report being assaulted by his former co-worker to the police. (Declaration of Jennifer A. Mustes, "Mustes Decl.", Doc. No. 61, Ex. A Decl. Ex. A p. 8 (specifically,10/17/16, 10/31/16, 12/2/16, 12/8/16, 4/4/17, 6/30/17, 7/13/17, 7/17/17 and 7/19/17 time entries).) Similarly, Plaintiff's counsel appears to have spent time addressing Plaintiff's medical condition, request for a medical leave, and applications for short term and long term disability - again not tasks expended on this litigation. (Id. (specifically 10/11/16, 10/13/16, 10/14/16, 10/17/16-10/20/16, 10/24/16, 10/26/16, 10/31/16, 12/19/16-12/21/16, 2/6/17-2/8/17, 5/3/17-5/5/17, 5/25/17, 5/31/17, 6/27/17, 6/30/17 and 7/10/17 entries).) While Plaintiffs contend that such tasks helped develop facts for the eventual lawsuit, they do not dispute the fees incurred on such work and this Court finds they were excessive for their stated purpose. Accordingly, this Court recommends that the Court decline to award $11,614 in fees in connection with these tasks. Millea, 658 F.3d at 168 ("[w]hen calculating a lodestar, the number of hours spent on a case should include only those hours spent on claims eligible for fee-shifting"); Webb v. Cty. Bd. of Educ., 471 U.S. 234, 242 (1985) (compensable time is that time spent on the litigation); see also Matthews v. City of New York, No. 02-cv-715 (CPS), 2006 U.S. Dist. LEXIS 22483, at *37 (E.D.N.Y. Mar. 27, 2006) (defendants disputed whether plaintiff was prevailing party in civil rights case where he prevailed only on state law claims of assault and battery; court denied attorneys' fees).
Similarly, Plaintiff seeks $8,649 in connection with his motion for a jury trial, made due to his counsel's failure to include a jury demand in the May 22, 2017 Complaint. (Mustes Decl., Ex. C.) In lieu of making a motion, which was unopposed, Plaintiff could have filed a demand within ten days of Metro-North's answer pursuant to Federal Rule of Civil Procedure 38(b)(1). Plaintiff's counsel does not dispute the procedure available under Rule 38. In other words, the motion was unnecessary. Therefore, this Court recommends that there be no award of fees in connection with this motion.
Plaintiff seeks $4,505 for time spent opposing Metro-North's extension of time to answer the Complaint. (Id. Ex. E.) Here again, this motion was unnecessary. Plaintiff was employed and there was no indication that he would be prejudiced by consenting to an extension of time. Thus, this Court recommends that there be no award of fees in connection with this motion.
Finally, Plaintiff seeks $2,400 for internal O&G decision-making regarding whether to bring this case. (Id., Ex. D.) This too is not time that typically would be recoverable from a fee-paying client. "Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc) (emphasis in original). Accordingly, this Court recommends that there be no award of fees in connection with this time.
The Court has carefully reviewed the remaining time spent and finds it to be excessive. For example, there are approximately 284 hours of time billed to internal conferences and correspondence. (Mustes Decl., Ex. F, p. 38 (specifically, entries for 10/2/14, 10/31/14, 1/15/15, 1/28/15, 3/22/16, 3/29/16, 4/15/16, 12/12/16, 1/5/17, 1/9/17, 2/3/17, 4/5/17, 4/13/17, 5/1/17 (multiple entries), 5/10/17 (multiple entries), 5/11/17 (multiple entries), 5/16/17, 5/25/17, 5/30/17, 6/9/17, 6/16/17, (multiple entries), 7/6/17, 7/11/17- 7/13/17 (multiple entries), 7/17/17, 7/18/17, 7/31/17 (multiple entries), 8/8/17-8/10/17 (multiple entries), 8/15/17, 8/17/17, 8/22/17, 9/5/17, 9/7/17 (multiple entries), 9/13/17, 9/19/17 (multiple entries), 10/5/17, 10/10/17, 10/17/17, 11/3/17, 11/8/17, 11/16/17 (multiple entries), and 2/8/18).)
This translates to $133,152 for internal conferences. Plaintiff's counsel states that this time was necessary to properly allocate tasks and efficiently staff the case. However, given this Court's knowledge of corporate scrutiny of outside counsel fees and commonplace rules prohibiting billing for internal conferences, it is highly unlikely counsel would be able to bill a client for this quantity of internal conferences. See Pascuiti v. New York Yankees, 108 F. Supp. 2d 258, 271 (S.D.N.Y. 2000) (stating that time spent on internal conferences is "harder to verify and more likely to be excessive."); Ansoumana v. Gristede's Operating Corp., No. 00-cv-253 (AKH) 2004 WL 504319, at *4 (S.D.N.Y. Jan. 7, 2004) (finding that "too many O&G lawyers billed for services, and too much time was expended in briefings and meetings of too many people"); see also Cooper v. Sunshine Recoveries, Inc., No. 00-cv-8898 (LTS) (JCF), 2001 U.S. Dist. LEXIS 8938, at *9-10 (S.D.N.Y. June 27, 2001) (reducing hours for excessive inter-office communications); Gatti v. Cmty. Action Agency, 263 F. Supp. 2d 496, 519-20 (N.D.N.Y. 2003) (same), aff'd, 86 F. App'x. 478 (2d Cir. 2004). For this reason, the Court recommends that time spent on internal conferences be reduced by 75%.
Plaintiff seeks reimbursement for 57 hours of attorney time to prepare and file the 29-page Complaint in this action. This corresponds to over $29,000 in legal fees for preparing the Complaint. (Mustes Decl. Ex. G.) This too is excessive especially in light of the fact that O&G had already filed two EEOC charges prior to filing the federal court Complaint, is highly experienced in drafting discrimination complaints, and did not need to reinvent the wheel given the notice pleading standard of Federal Rule of Civil Procedure 8. See DeCastro, 2017 U.S. Dist. LEXIS 162737, at *18-19 (finding that plaintiff's counsel billed excessive hours where they spent over 100 hours in the preliminary stages of the case "including 21 hours for drafting and editing the initial and amended complaints"); Doe, 2015 U.S. Dist. LEXIS 34506, at *39 ("[o]ne example of excessive billing is illustrated by the 79 hours billed for drafting the complaint"); Hines v. 1025 Fifth Ave. Inc., No. 14-cv-3661 (SAS), 2015 U.S. Dist. LEXIS 84946, at *19 (S.D.N.Y. June 30, 2015) ("58.2 hours is far too much time for a 27-page complaint"). In determining whether fees for drafting the complaint are excessive, the Court also considers the experience of the attorneys and the expertise of the law firm as well as the ability to work off of prior pleadings. Ortiz v. Chop't Creative Salad Co., LLC, 89 F. Supp.3d 573, 593 (S.D.N.Y. 2015) ("Between counsel's experience and background and their ability to utilize previous complaints in drafting the instant complaint, the Court finds that the number of attorneys and the number of hours expended drafting, editing and revising the complaint was excessive, duplicative and unnecessary"); Simmonds v. N.Y. City Dep't of Corr., No. 06-cv-5298 (NRB), 2008 U.S. Dist. LEXIS 74539, at *24 (S.D.N.Y. Sept. 16, 2008) ("Also, over one hundred and forty-two (142) hours were billed for drafting and filing the complaint, notwithstanding the fact that the ACLU [as co-counsel in the lawsuit] had already prepared Simmonds EEOC charges..."); see also Alicea, 272 F. Supp.3d at 612 (finding counsel billed over 14 hours to draft proposed voir dire charges that "experienced civil rights attorneys should have been able to submit in a fraction of that time"). Accordingly, this Court recommends that Plaintiff's counsel be reimbursed for only 40 hours of time in connection with drafting the complaint: 1 hour at the recommended O&G paralegal rate, 2 hours at the recommended O&G partner rate, and the remaining 38 hours at the recommended O&G senior associate rate.
O&G spent more than 53 hours preparing a mediation statement at a cost of more than $23,000, and 97 hours preparing for the mediation at a cost of $43,000. (Mustes Decl., Exs. H and I.) This was totally unnecessary. This Court limits the length of pre-mediation statements precisely to avoid the amount of time expended on writing tasks. While it is true that the Court permitted the parties in this case to submit more than the typical 3-page letter, this Court also advised the parties that it was familiar with the legal principles at issue. While some mediations admittedly require considerable preparation time, and while the Court certainly appreciates the care taken by Plaintiff's counsel, in no way was the time spent necessary or even conceived as possible by this Court given the facts and law at issue. Also, no reasonable client would pay for more than one partner and more than one associate to prepare for and attend a mediation. Thus, this Court recommends that the time spent preparing for mediation be reduced to 65 hours, 10 of which shall be paid at Ms. Peratis's rate, 50 at Ms. Lin's rate, and 5 at the paralegal rate. See Super Express USA Publ'g. Corp. v. Spring Publ'g. Corp., No. 13-cv-2814 (DLI) (JO), 2018 U.S. Dist. LEXIS 29630, at *3-4 (E.D.N.Y. Feb. 23, 2018) (finding 27.3 hours of attorney time to prepare for a settlement conference to be excessive); Kizer v. Abercrombie & Fitch Co., No. 12-cv-5387 (JS) (AKT), 2017 U.S. Dist. LEXIS 116364, at *35 (E.D.N.Y. July 24, 2017) (billing 9 hours to prepare for a court conference was excessive); Murray v. Mills, 354 F. Supp. 2d 231, 241 (E.D.N.Y. 2005) (4 hours to prepare for a settlement conference was "excessive and unreasonable").
O&G also spent a large amount of time doing legal research and drafting internal memoranda. Ms. Lin, Ms. Biegelsen, and O&G paralegals spent 145 hours at a cost of over $44,000 conducting legal research and drafting internal memoranda. (Mustes Decl. Ex. J.) Although Metro-North complains that some of that research appears to have concerned basic legal principles (e.g., hostile work environment claims, punitive damages and emotional distress) or did not relate to the claims or defenses in this litigation (e.g., NLRB or union-related issues and quashing a subpoena), Plaintiff's counsel has given an explanation for the hours. (Doc. No. 63 pp. 14-15.) Given that O&G is one of the most preeminent plaintiff-side firms in employment law and that it had the aid of TLDEF, one would expect that the time spent on legal research would have been lower. At the same time, the Court appreciates that Plaintiff's counsel were trying to advance the law in the area of transgender rights and the extent to which discrimination based on gender identity or gender non-conformity constitutes sex discrimination within the meaning of Title VII. This type of effort requires close analysis of the law and careful planning prior to bringing suit. Therefore, the Court recommends that time spent on research be reduced to 100 hours: 75 hours at the rate approved for Ms. Biegelsen and 25 at the rate approved for Ms. Lin. See Gordon v. Camp Canine, No. 02-cv-4093 (SAS) (JCF), 2003 U.S. Dist. LEXIS 4540, at *11 (S.D.N.Y. Mar. 25, 2003) (stating "an excessive amount of time was spent researching . . . what should be straightforward issues for a firm experienced in this area"); see also Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 209 (E.D.N.Y. 2007) (reducing fees for excessive research).
Metro-North complains that many of the entries in Plaintiff's counsel's billing records are vague insofar as they do not reflect the topic of the conversation or meeting, or specify the nature of the correspondence. Metro-North's counsel computed 122.1 hours totaling $60,360 for work with such vague descriptions. (Mustes Decl., Ex. B.) But some of these entries appear to relate to some of the other tasks mentioned above for which the Court is reducing hours. Moreover, this Court does not find the descriptions, when viewed in the totality of O&G's bills, to be so vague as to warrant a reduction in these hours.
Plaintiff seeks approximately $53,000 in connection with work done on the motion for attorneys' fees and costs. (Doc. No. 53, p. 3.) The time records submitted on this motion reflect that Plaintiff's attorneys spent more than that - over 189 hours in attorney and paralegal time at a cost of over $75,000. (Mustes Decl., Ex. K, p. 12.) Regardless, the amount sought is clearly excessive. Murray v. Mills, 354 F. Supp.2d 231, (E.D.N.Y. 2005) (150 hours for a fee application is "grossly amplified," and even for more complex cases, 30 hours for a fee application is "generous"); Cooper v. Sunshine Recoveries, No. 00-cv-8898 (LTS) (JCF), 2001 U.S. Dist. LEXIS 8938, at *11 (40 hours reduced to 19 for fee application); Colbert v. Furumoto Realty, 144 F. Supp.2d 251, 261-62 (S.D.N.Y. 2001) (20.5 hours reduced to 15.5 for fee application); Rosasa v. Hudson River Club Rest., No. 96-cv-0993 (DLD), 1998 U.S. Dist. LEXIS 2665, at *10 (S.D.N.Y. Mar. 9, 1998) (48.9 hours reduced to 15 for fee application). Involving five attorneys and two paralegals in the fee application was unnecessary. And, while Mr. Friedman clearly is highly experienced in fee applications, so too is O&G. The Court recommends that the fees sought for this motion be cut by 50%. See Cruceta v. City of New York, No. 10-cv-5059 (FB) (JO), 2012 U.S. Dist. LEXIS 97740, at *22-23 (E.D.N.Y. Feb. 7, 2012) (recommending a 50% reduction to a fee application where there was little reason to have two sets of attorneys billing as a practical means of trimming fat from a fee application), adopted by 2012 U.S. Dist. LEXIS 97736 (E.D.N.Y. July 13, 2012).
Courts in this District have applied percentage reductions of up to fifty percent to address overbilling issues. See Alicea, 272 F. Supp.3d at 612 (where plaintiff's counsel engaged in numerous instances of excessive and unjustified billing, the court found that "[a] fifty percent cut in this case is warranted"); Hines, 2015 U.S. Dist. LEXIS 84946, at *25 ("I find that a fifty (50) percent reduction in the total number of hours expended is necessary to correct for excessive billing, over litigation, and counsel's utter failure to exercise billing judgment"); La Barbera v. VLF11 Mgmt. Corp., No. 08-cv-2615 (ENV) (MDG), 2012 U.S. Dist. LEXIS 63548, at *20 (E.D.N.Y. Apr. 3, 2012) (based on excessive billing on tasks and duplication of work by multiple attorneys, court "find[s] that a 45% percent reduction in total hours is appropriate to correct for the unreasonable amount of time expended by counsel on this case."). But, as noted above, this Court has considerable discretion in awarding fees and recommends a mix of reductions. Additionally, after reducing totals from the overall amount requests as set forth below, the Court recommends lowering the bill an additional $53,072.65 to account for the rate adjustments recommended. The following is a computation of the recommended adjustments:
| Merits Phase | ||
|---|---|---|
| Total Requested: | $564,759.50 | |
| Less: | -$11,613 | (excess time spent on non-litigation related tasks) |
| -$8,649 | (excess time spent on motion for jury trial) | |
| -$4,505 | (excess time spent on internal decision-making) | |
| -$99,864 | (excess time spent on internal conferences; 75% of$133,152) | |
| -$11,900 | (excess time spent on Complaint; recommendedreimbursement is $17,000 instead of $29,000 for 1hour of partner time, 38 hours of senior associatetime and 1 hour of paralegal time) | |
| -$36,000 | (excess time spent on mediation; recommendedreimbursement is $30,000 instead of $66,000 for10 hours of partner time, 50 hours of seniorassociate time and 5 hours of paralegal time) | |
| -$10,875 | (excess research time; recommendedreimbursement is $33,125 instead of $44,000 for75 hours of junior associate time and 25 hours ofsenior associate time) | |
|---|---|---|
| Subtotal: | $381,353.50 | |
| Less: | -$53,072.65 | |
| (Average hourly rate sought is $448.18; Averagehourly rate recommended is $390.90.$415,241.50/$448.18=926.51 hours; 926.51 hoursx $390.90=$362,168.85. $415,241.50-$362,168.85=$53,072.65) | ||
| Recommended Merits Phase Award: | $ 328,280.85 | |
| Fee Application Phase | ||
| Total Requested: | $53,000 | |
| Less 50% | -$26,500 | |
| Recommended Fee Application Award: | $26,500 | |
| TOTAL RECOMMENDED AWARD: | $354,780.85 |
New York, New York
Respectfully submitted,
/s/_________
Katharine H. Parker
United States Magistrate Judge
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation
to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only
when service is made under Fed. R. Civ. P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or
(F) (other means consented to by the parties)).