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noting that attorney time entries that merely indicate that “research” was performed are generally considered too vague to justify full recovery
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11 Civ. 5458 (JGK) (DF)
10-16-2012
D.J., an infant by her Mother and Natural Guardian, JACKIE ROBERTS, and, JACKIE ROBERTS, Individually, Plaintiffs, v. CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN G. KOELTL, U.S.D.J.:
Plaintiff Jackie Roberts ("Roberts"), individually and acting as the legal guardian of her infant daughter, D.J. (collectively, "Plaintiffs") filed this Section 1983 action against the City of New York (the "City") and 10 New York City Police Department ("NYPD") officers (collectively, "Defendants"), primarily alleging that Defendants violated DJ's civil rights, as the result of an unlawful arrest and prosecution. (See generally Complaint, dated Aug. 3, 2011 ("Compl.") (Dkt. 1).) Currently before this Court is Roberts' motion for leave to settle the action. Having considered the parties' submissions in support of the proposed settlement and having conducted an infant compromise hearing, I respectfully recommend that, with certain adjustments to the attorney's fees and costs sought by Plaintiffs' counsel, the Court approve the proposed settlement described below as fair, reasonable, and in the best interests of the infant. See Loc. Civ. R. 83.2(a); N.Y. C.P.L.R. §§ 1205-08; N.Y. Judiciary Law ("Jud. Law") § 474.
An action brought on behalf of a minor should identify that minor only by his or her initials. See Fed. R. Civ. P. 5.2(a)(3). Although, by identifying the minor plaintiff by her full name in the caption of the Complaint, plaintiff's guardian waived the protections of Rule 5.2 in this case, see Fed. R. Civ. P. 5.2(h), this Court notes that the proposed Infant Compromise Order that Plaintiffs have now submitted reverts to the use of the minor's initials, and, in its discretion, the Court will proceed in that manner here. See J.A. ex rel. Atkins v. Ja-Ru, Inc., No. 08 Civ. 3640 (DAB) (KNF), 2011 WL 990167, at *1 n.1 (S.D.N.Y. Mar. 15, 2011) (Report & Recommendation), adopted by 2011 WL 940224 (Mar. 17, 2011).
BACKGROUND
A. Factual Background
The facts summarized herein are based on the allegations of the parties' pleadings, as amplified by Plaintiffs' testimony and counsel's representations made at the infant compromise hearing. The facts underlying Plaintiffs' case are neither complex nor substantially in dispute. Essentially, it is alleged that, on Friday, March 25, 2011, D.J. - who was then 16 years old - agreed to run an errand for a neighbor in her building, specifically, to buy toilet paper. (See Compl. ¶ 14.) Soon after D.J, returned to her building and went to the neighbor's apartment to deliver the toilet paper, a number of NYPD officers arrived at that apartment, executing a search warrant for that premises. (See the City's Answer to the Complaint, dated Nov. 21, 2011 ("Ans.") (Dkt. 7), ¶ 16.) The NYPD apparently found drugs in the apartment and proceeded to detain and arrest everyone present, including, among others, D.J. and several other teenagers. (See Compl. ¶¶ 15-21.) D.J. was then brought to the 44th precinct (see id. ¶ 22), and she remained in police custody until the afternoon of Sunday, March 27, 2011, when she was finally released on her own recognizance (see id. ¶ 33). The District Attorney did not pursue the case against D.J. and dismissed all charges against her. (See Ans. ¶ 35.)
Although the hearing was transcribed by a court reporter, no transcript has yet been made available.
B. Procedural History
Plaintiffs initiated this action on August 5, 2011. (See Dkt. 1.) In their Complaint, Plaintiffs alleged, inter alia, that D.J. was arrested without probable cause and subjected to malicious prosecution and abuse of process; that the police officers involved in D.J.'s arrest provided false information to prosecutors, pursuant to the City's policies and practices; that the City had engaged in the negligent hiring and retention of the officers who violated D.J.'s rights; and that Defendants, by their actions, subjected Plaintiffs to the intentional infliction of emotional distress. (See generally Compl.)
The parties conducted limited pretrial discovery within the parameters of the Court's Section 1983 Plan. (See Letter from Deborah L. Mbabazi, Esq., to the Hon. John G. Koeltl, dated Oct. 6, 2011 (Dkt. 5).) They made initial documentary disclosures and exchanged and responded to interrogatories. The parties then engaged in settlement negotiations, informing the Court on March 8, 2012, that they had reached an agreement in principle to resolve the action.
As presented to the Court, the material terms of the agreement are as follows: In consideration of Plaintiffs' discontinuance of the entire action with prejudice, Defendants have agreed to make a lump-sum payment to Plaintiffs of $12,500, inclusive of attorney's fees and costs. (See generally Proposed Infant's Compromised Order (Dkt. 15, Ex. B).) Plaintiffs represent that the entire settlement amount, less attorney's fees and costs, would be paid to D.J., with her mother (Roberts) accepting no portion of the settlement proceeds for herself. (See id.)
On April 23, 2012, this action was referred to this Court to conduct appropriate infant compromise proceedings. (Dkt. 14.) This Court then held a number of conferences with counsel, at which the Court explained the nature of the written submissions that would be appropriate to support a proposed Infant Compromise Order. After some delays, the Court eventually received affidavits from Plaintiffs' counsel, Lauren P. Raysor, Esq. ("Raysor") (Affidavit of Lauren P. Raysor, Esq., sworn to Aug. 17, 2012 ("Raysor Aff.") (Dkt. 15-2)), and from Roberts (Affidavit of Jackie Roberts, sworn to Aug. 17, 2012 ("Roberts Aff.") (Dkt. 15-1)), and the Court scheduled an infant compromise hearing for August 29, 2012.
This Affidavit is mistakenly identified on the Court's Docket as an Affidavit of Ramona Lawrence.
Counsel for all parties appeared at the hearing, as did both Roberts and D.J., who traveled from Atlanta, Georgia, to attend the hearing in person. At the hearing, the Court questioned both counsel and received sworn testimony from both Roberts and D.J. All those present represented to the Court their belief that the proposed settlement was in the parties' best interests.
At the close of the hearing, the Court requested a follow-up submission from Raysor, as she had not previously submitted written documentation of the attorney's fees and costs incurred by Plaintiffs in the action. Although Plaintiffs and their counsel had agreed to a contingency fee arrangement, the Court requested a breakdown of the time that Plaintiffs' counsel had spent on the action, together with information about counsel's usual hourly rate, as evidence relevant to the appropriateness of the proposed contingency fee. Raysor finally made the requested post-hearing submission on October 2, 2012.
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
Federal courts are directed to "conform [infant compromise proceedings], as nearly as may be, to the New York State statutes and rules." Local Civil R. 83.2(a). Under New York law, affidavits setting forth the nature of and reasons for any proposed infant settlement must be provided by both the infant's representative and the infant's attorney. N.Y.C.P.L.R. § 1208(a), (b). While Local Rule 83.2 does not impose "rigid" procedural obligations on federal district courts, Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 655 (2d Cir. 1999); see also Local Civil R. 83.2(a) (stating that the court may dispense with any New York State requirement "for cause shown"), it is clear that the federal courts have an obligation to review and approve all proposed settlements that would compromise the claims of minors. Thus, regardless of whether the federal court strictly adheres to state procedures, the court must review any proposed settlement of an infant's claim to determine whether: (1) the proposed settlement is in the infant's best interests; and (2) the proposed attorney's fees and costs are reasonable. See Local Civil R. 83.2(a); N.Y. Jud. Law § 474; see also N.Y. C.P.L.R. §§ 1205-08.
There is no bright-line test to determine whether a proposed settlement is in an infant's best interests. See, e.g., Newman v. Stein, 464 F.2d 689, 692 (2d Cir. 1972) (explaining "delica[cy]" of court's multifactorial analysis as to whether settlement is appropriate), cert. denied, 409 U.S. 1039 (1972). Several factors bear on a settlement's propriety, including the complexity, expense, and likely duration of litigation; the extent to which discovery has been completed; the risks of establishing both liability and damages; the defendant's ability to withstand a higher judgment; and the reasonableness of the settlement amount, taking into account both the best possible recovery and the attendant risks of litigation. See City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (internal citations omitted). Weighing these factors does not require the court to "decide the merits of the case or resolve unsettled legal questions." In re Veeco Instruments Inc. Sec. Litig., No. 05 MDL 0165 (CM), 2007 WL 4115809, at *8 (S.D.N.Y. Nov. 7, 2007) (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 88 n.14 (1981)). Rather, the court must determine whether the proposed settlement is "'fair, reasonable, and adequate' by comparing the 'terms of the compromise with the likely rewards of litigation.'" Neilson, 199 F.3d at 654 (quoting Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1995)).
There is a "strong presumption" that a settlement is fair and reasonable when "(i) the settlement is not collusive but was reached after arm's length negotiation; (ii) the proponents have counsel experienced in similar cases; [and] (iii) there has been sufficient discovery to enable counsel to act intelligently." Orlandi ex rel. Colon v. Navistar Leasing Co., No. 09 Civ. 4855 (THK), 2011 WL 3874870, at *2 (S.D.N.Y. Sept. 2, 2011) (quoting Ross v. A.H. Robins Co., 700 F. Supp. 682, 683 (S.D.N.Y. 1988)). The court also accords deference to a natural guardian's opinion that settlement is fair and reasonable and in the infant's best interest. See id., 2011 WL 3874870, at *2; Stahl v. Rhee, 643 N.Y.S.2d 148, 153 (2d Dep't 1996) ("In a case where reasonable minds may legitimately differ, the judgment of the infant's natural guardian should prevail.").
With respect to any request for attorney's fees in the context of an infant's settlement, the Court has an independent obligation to scrutinize the appropriateness of counsel's requested compensation, so as to protect the interests of the infant client. See Local Civil R. 83.2(a)(2); Sanchez v. MTV Networks, No. 10 Civ. 7854 (TPG), 2012 U.S. Dist. LEXIS 80810, at *5 (S.D.N.Y. June 8, 2012). For this reason, any contingency-fee agreement to which the infant plaintiff's guardian may be a party is treated by the Court as "advisory only." Orlandi, 2011 WL 3874870, at *4 (internal quotation marks and citations omitted); see also Kendrick D. v. Catholic Home Bureau, No. 06 Civ. 13129 (DAB) (HBP), 2010 U.S. Dist. LEXIS 123616, at *22 (S.D.N.Y. Oct. 14, 2010) (Report & Recommendation) ("[I]n the last analysis the amount of the fee must be fixed by the court." (internal quotation marks and citation omitted)), adopted by 2010 U.S. Dist LEXIS 123615 (Nov. 18, 2010). In short, fee agreements between an attorney and an infant's guardian are always "subject to the power of the court," and it is the Court's responsibility to "determine the value of the services" provided and to award "suitable compensation" based on those services. N.Y. Jud. Law § 474; see also De Alvarez v. City of New York, No. 10 CV 4434 (SJ) (LB), 2012 WL 2087761, at *2 (E.D.N.Y. May 16, 2012 ) (Report & Recommendation) ("The Court must ensure that the allocation of attorney's fees from the settlement proceeds represents 'suitable compensation for the attorney for his services,' notwithstanding contingency agreements with a party."), adopted by 2012 WL 2087759 (June 8, 2012); Orlandi, 2011 WL 3874870, at *4.
As a general matter, appropriate attorney compensation is determined by mutiplying the number of hours that counsel has reasonably expended on the litigation by a reasonable hourly rate. Millea v. Metro-North Railroad Co., 658 F.3d 154, 176 (2d Cir. 2011) ("Both this Court 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.'" (citing Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008); Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1673 (2010) (internal quotation marks and citations omitted)). The party seeking fees has the burden of demonstrating that its requested fees are reasonable. See Blum v. Stenson, 465 U.S. 886, 897 (1984). To satisfy this burden, counsel must submit contemporaneous time records that are sufficiently detailed and complete to enable the Court to evaluate the reasonableness of the fees sought. Martegani v. Cirrus Design Corp., 687 F. Supp. 2d 373, 378-79 (S.D.N.Y. 2010).
II. REASONABLENESS OF THE PROPOSED SETTLEMENT
A. Amount of Defendants' Settlement Payment
In this case, the circumstances surrounding Defendants' proposed settlement of $12,500 give rise to a presumption that it is fair and reasonable. The parties, through experienced counsel, conducted settlement negotiations at arm's length. While depositions were not taken, counsel's statements at the hearing showed that there has been sufficient discovery to allow counsel to assess the relative strengths and weaknesses of their clients' claims and defenses, and to advise their clients accordingly. In addition, both Roberts and D.J. testified that they were satisfied with Raysor's representation (see Roberts Aff. ¶ 16), and that they believed the settlement amount to be fair.
The Court notes that, while still a minor, D.J. was close to her 18th birthday by the time of the hearing. (See Letter to the Court from Lauren P. Raysor, Esq., dated Apr. 18, 2012 (Dkt. 13) (stating that D.J. would reach the age of 18 in January 2013).) There was also nothing in the record to suggest that D.J. was impaired in any way, or was anything less than fully competent to testify to her own views, which, when given under oath, appeared thoughtful and mature.
Taking into account the risks of pursuing the action, there is an appreciable risk that D.J. would not have secured any recovery had the case proceeded to summary judgment or trial. Defendants' counsel explained at the hearing that Defendants had strong defenses to the action, as there was evidence in the record to show that the police had entered the apartment in question pursuant to a valid warrant, issued on probable cause; that illegal narcotics had, in fact, been found in the apartment; that the police had probable cause to arrest all those present in the premises; and that, based on the totality of the circumstances, D.J. was not held in custody for an unreasonable period of time. Defendants' counsel also pointed out that D.J. did not complain of any physical injury at the hands of the NYPD and that she had not suffered any lasting psychological trauma from the incident. Nonetheless, Defendants' counsel proffered the view that, in light of D.J.'s young age and the length of her detention, a settlement in the range offered was reasonable.
On Plaintiffs' part, Raysor set forth by affidavit - and then reiterated at the hearing - the reasons why, in her opinion, the proposed settlement was in D.J.'s best interests. Echoing some of Defendants' stated positions, Raysor conceded, inter alia, that "[l]iability may be questionable" and that there was "no proof of physical and or [sic] psychological injuries." (Raysor Aff. ¶ 8.) Roberts, as D.J.'s mother and guardian, confirmed in her own affidavit that D.J. did not suffer any significant "problems" resulting from her arrest; at most, Roberts suggested that, "from time to time[,] DJ may feel bad about the incident." (Roberts Aff. ¶ 13.) At the hearing, Roberts also testified that, subsequent to the incident, she and D.J. had moved to Atlanta, in order to be closer to family. D.J., herself, testified that she had resumed her studies in Atlanta and was adjusting well to her new home. D.J. further testified that she had not sought any medical or psychiatric treatment following the incident and that she did not suffer from any adverse after-effects of the arrest. According to Roberts, as she and D.J. no longer lived in New York, settlement of the action would be a desirable outcome, both to help them move past the incident and also to help them avoid the travel costs associated with continuing to pursue the litigation.
Overall, in light of the seeming strength of Defendants' proffered defenses to Plaintiffs' claims; the lack of any significant or lasting injury to D.J.; the willingness of Roberts to forego any recovery on her own behalf, so as to maximize the recovery for D.J.; and both Roberts' and D.J.'s counseled and thoughtful determinations that the proposed settlement would be in D.J.'s best interest, I recommend that the Court find that the proposed settlement amount of $12,500 is fair, reasonable, and adequate, and that it is, consequently, in the best interests of the infant plaintiff.
B. Proposed Means of Investment and Maintenance of Infant's Funds
Plaintiffs have stated that, if approved, the settlement proceeds allocated to D.J. will be deposited in a bank account established in her name and yielding the highest available interest rate. (See Roberts Aff. ¶ 17.) There appears to be some confusion over exactly where this account was intended to be established, as documents submitted by Plaintiffs, prior to the hearing, referenced both Chase Bank ( id.) and Bank of America (proposed Infant's Compromised Order (Dkt. 15)). Based on Roberts' representations to the Court at the hearing, however, the Court understands that an account has now been opened in D.J.'s name at Wells Fargo Bank. Roberts further represented at the hearing that this account bears the highest available interest rate, and that the funds will not be withdrawn until D.J. reaches the age of majority in January 2013. Under these circumstances, and given the short time frame in which the funds will be held on D.J.'s behalf, the Court finds that the deposit of settlement funds into the account described by Roberts will be in the best interests of the infant plaintiff.
C. Attorney's Fees and Costs
Having signed a contingency-fee agreement with Roberts, Raysor seeks an award of one-third of the settlement proceeds, or $4,166.66, as her fee, plus $500 in costs. (See Raysor Aff. ¶ 11.) Raysor, however, has not satisfied her burden to demonstrate the reasonableness of the proposed fee award and to document the requested costs.
1. Attorney's Fees
As an initial matter, Raysor has improperly calculated the one-third fee she seeks by dividing the gross settlement amount of $12,500 rather than the net amount, after costs. See Estate of Marshall v. City of New York, No. 08 Civ. 2893 (ERK)(VVP), 2012 WL 2320764, at *1 (E.D.N.Y. June 19, 2012) (noting "standard contingency fee arrangement" gives "counsel one-third of the net settlement proceeds, after deductions [a]re made for the reimbursement of costs and expenses"). For the reasons explained below, the Court finds that Raysor has properly documented $350 in costs, which would leave a net settlement amount of $12,150, making Raysor's claimed one-third share $4,050.
The Court noted the proper method of calculation at the hearing, and Raysor did not object.
The "starting point" in analyzing whether claimed attorney's fees are appropriate, however, is not Plaintiffs' fee agreement, but rather "the lodestar—the product of a reasonable hourly rate and the reasonable number of hours required by the case." Millea, 658 F.3d at 166-67; see also Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 90 (2d Cir. 2010) ("[U]nder N.Y. Judiciary Law § 474, a contract between the attorney and the infant guardians providing for a contingency fee is to be considered by the judge, but it is not binding." (citation omitted)). The Court therefore begins by examining Raysor's hourly rate and the amount of time she reasonably expended on this case.
In support of her request for attorney's fees, Raysor explained in her initial Affidavit that she had: (1) "conducted an investigation" by speaking to Roberts and D.J. (id. ¶ 5); (2) appeared at "[s]everal conferences," (id. ¶ 6); and (3) participated in "[e]xtensive settlement negotiations" (id. ¶ 7). Raysor, however, did not set out the amount of time she had spent on these tasks or her billing rate for such work. Following the hearing, at the Court's request, Raysor made an additional submission (see Letter to the Court from Lauren P. Raysor, Esq., dated Sept. 24, 2012 ("Raysor Ltr."), with attachment), in which she purportedly described the work she performed and the hours expended on that work, and in which she set out her hourly billing rate of $350 per hour.
A reasonable hourly rate is the "the rate a paying client would be willing to pay," based on prevailing rates in the community where the court sits. Arbor Hill, 522 F.3d at 189. Raysor states that she has been in private practice for 12 years, and, although she has not submitted further details about her practice experience, biographical information available on her website shows that she graduated from law school in 1988 and that, before starting her own practice, she gained experience working in both the New York City Law Department and the State Attorney General's Office. See www.laurenraysor.com. The rate of $350 per hour for someone of Raysor's apparent experience is within the range of rates that have been held to be reasonable in this district, for civil rights work. See, e.g., Wise v. Kelly, 620 F. Supp. 2d 435, 443-47 (S.D.N.Y. 2008) (in this district, accepting senior partner rate of $425/hour and senior associate rate of $300/hour in civil rights case; collecting cases); see also De Alvarez, 2012 WL 2087761, at *4 (in the Eastern District of New York, finding fee of $350/hour to be reasonable for counsel who had been practicing for 43 years (citation omitted)).
In determining a reasonable rate, courts may consider "all relevant circumstances," including:
the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.Arbor Hill, 522 F.3d at 184, n.2.
Even Raysor's supplemental submission, however, is inadequate to enable the Court to evaluate the reasonableness of the hours she supposedly expended on this matter. "The burden is on counsel to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required." Griffiths v. Jugalkishore, No. 09 Civ. 2657 (LTS) (KNF), 2010 WL 4359230, at *6 (S.D.N.Y. Oct. 13, 2010) (Report & Recommendation) (internal quotation marks and citations omitted), adopted by 2010 WL 4365552 (Nov. 3, 2010); see also N.Y. State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983) (records "should specify, for each attorney, the date, the hours expended, and the nature of the work done"). "[W]here adequate contemporaneous records have not been kept[,] the court should not award the full amount requested." Griffiths, 2010 WL 4359230, at *6 (internal quotation marks and citations omitted); accord Kendrick D., 2010 U.S. Dist. LEXIS 123616, at 23 (citation omitted). Here, Raysor conceded at the hearing that she did not maintain contemporaneous time records for this case, and it appears that the reconstructed records she has now submitted are neither reliable nor accurate.
Raysor submitted a document resembling an invoice, with 10 line items (Raysor Ltr., attachment), but that document is facially unreliable. For example, the invoice contains absolutely no reference to any review of discovery materials or to any consultation with Plaintiffs regarding those discovery materials, even though Raysor explained at the hearing that she had sufficiently reviewed such materials to be able to counsel her clients meaningfully as to the settlement value of Plaintiffs' claims. Further, although Raysor has stated that she engaged in extensive settlement negotiations, she provides no record of such time. Meanwhile, Raysor includes in her submission several plainly excessive time entries. For example, she requests compensation for a full hour for the filing of papers in this case. (See Raysor Ltr., attachment (listing entry of "Filing of Summons & Complaint 1 hr @ $350.00 per hr").) Not only is the filing of papers generally considered an administrative task that is not appropriately billed as attorney time, see, e.g., Bosket v. NCO Fin. Sys., Inc., No. 3:11-CV-00678 (LEK), 2012 WL 4093023, at *4 (N.D.N.Y. Sept. 17, 2012), but papers are also now electronically filed in this Court, generally enabling such filing to be accomplished in a matter of minutes. Raysor also lists two hours to prepare the "Infants Compromised Order [sic]" - an excessive amount of time, especially for an experienced attorney, to prepare a three-page document containing several typographical errors. Raysor also bills three hours for a "Court Appearance" on August 29 that, according to the Court's records, lasted 50 minutes (and to which Raysor arrived late).
If the last entry is intended to include Raysor's travel time, that should have been specified to allow the Court to determine whether, and to what extent, a reduction in Raysor's billing rate would have been appropriate for the listed time. See, e.g., Mister Sprout, Inc. v. Williams Farms Produce Sales, Inc., No. 10 Civ. 6036 (RMB) (JCF), 2012 WL 3031471, at *7 (S.D.N.Y. July 25, 2012) ("Although it is within a district court's discretion to compensate travel time at the full hourly rate, courts in the Second Circuit often reduce attorneys' fees for travel time by 50 percent." (Internal citations omitted)).
Raysor also states, without detailed explanation, that she spent three hours researching and preparing a memorandum of law with respect to the proposed infant compromise. Attorney time entries like this one, which merely states that "research" was performed, without describing the issues for which research was required, are generally considered too vague to justify full recovery. See, e.g., Vishipco Line v. Charles Schwab & Co., Nos. 02 Civ. 7823, 7846, 7877, 7915, 7928, 7929 (SHS), 2003 WL 1936142, at * 2 (S.D.N.Y. Apr. 23, 2003) (time entries such as "legal research" too vague to allow court to determine reasonableness of time expended); Shannon v. Fireman's Fund Ins. Co., 156 F. Supp. 2d 279, 301 (S.D.N.Y. 2001) (time entries such as "legal research," which do not indicate the subject matter of the work performed, "do not permit a thorough evaluation"); TM Park Ave. Assocs. v. Pataki, 44 F. Supp. 2d 158, 169 (S.D.N.Y. 1999) (time entries "are not sufficiently detailed" where they "merely state 'research'"), vacated on other grounds, 214 F.3d 344 (2d Cir. 2000); Local 32B-32J v. Port Auth., 180 F.R.D. 251, 253 (S.D.N.Y. 1998) (time entries indicating "research" were inadequate where there was "no indication of what topics were researched").
Where attorney time records are inadequate to allow for judicial review, it is appropriate for the Court to reduce the hours stated, see Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A percentage reduction, typically in the range of 20 to 30 percent, is often applied as a "practical means of trimming fat" from a fee application. Carey, 711 F.2d at 1146; see also, e.g., Kirsch v. Fleet St. Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (affirming 20% fee reduction for vagueness and other deficiencies in attorney billing records); Terminate Control Corp. v. Nu-Life Constr. Corp., 28 F.3d 1335, 1342-43 (2d Cir. 1994) (30% fee reduction for "lack of specific record keeping" was within the district court's discretion); Suchodolski Associates, Inc. v. Cardell Financial Corp., Nos. 03 Civ. 4148 (WHP), 04 Civ. 5732 (WHP), 2008 WL 5539688, at *2 (S.D.N.Y. Dec. 18, 2008) (collecting cases applying percentage reductions of up to 30%).
In this instance, apart from the entries - discussed below - that Raysor characterizes as "costs" (i.e., for the filing fee and service of process), Raysor's records purportedly show that she spent 12 hours working on this case. A 30% reduction yields 8.4 hours of billable time, and a resulting lodestar for counsel's services of $2,940 (i.e., 8.4 hours at $350/hr).
The Court is mindful than an award of the lodestar, calculated on the basis of hours worked and an hourly rate, would be at odds with the contingency-fee arrangement between Raysor and Roberts. The court also notes that, in contingency-fee cases where counsel's time records suggest that the lodestar would likely be materially higher than the proposed contingency fee, courts generally award the contingency fee, as being in the best interest of the minor. See, e.g., Sanchez, 2012 U.S. Dist. LEXIS 80810, at *8 (approving requested 37.5% contingency fee because "[h]ad the Firm charged [plaintiff] by the hour, it would be seeking substantially more fees"), Johnson v. City of New York, No. 08 Civ. 2673 (KAM) (LB), 2010 WL 5818290, at *5 (S.D.N.Y. Dec. 13, 2010) (approving requested one-third contingency fee where contemporaneous time records indicated fees would have been substantially higher had work been charged at hourly rate). Here, however, the lodestar, as determined by the Court, is lower than the requested contingency fee, and thus the interests of the infant plaintiff suggest that the Court should not diverge from the lodestar calculation. Indeed, "[t]he Court must ensure that the allocation of attorney's fees from the settlement proceeds represents suitable compensation for the attorney for [her] services, notwithstanding [the] contingency agreement[]," Johnson, 2010 WL 5818290, at *4 (internal quotation and citation omitted), and there is a "'strong presumption' that the lodestar figure is reasonable," Perdue, 130 S. Ct. at 1673.
Accordingly, I recommend that Raysor be permitted to recover $2,940 in fees, which represents compensation at her asserted hourly rate for 30-percent fewer hours than she claims to have expended on this case.
As a "check" on the reasonableness of the Court's lodestar calculation, the Court has also considered the fee amount that would result if the Court were to follow the approach generally taken in infant compromise cases where the infant's counsel has neither maintained nor presented any purported time records at all, rendering it impossible to calculate a lodestar. In such cases, courts have typically applied a percentage reduction not to the hours claimed, but rather to the contingency fee itself. See Griffiths, 2010 WL 4359230, at *7 (recommending, due to lack of contemporaneous documentation of fees, reducing proposed contingency fee by 30%); Martegani v. Cirrus Design Corp., 687 F. Supp. 2d 373, 378-79 (S.D.N.Y. 2010) (reducing proposed contingency fee by 30%, as, absent adequate records, court could "neither assess the reasonableness of proposed attorney fees accurately, nor determine what a reasonable client might be willing to pay"); Mateo v. United States, No. 06 Civ. 2647 (KNF), 2008 WL 3166974, at *4-5 (S.D.N.Y. Aug. 6, 2008) (same). Given that the time records submitted by counsel in this case were not maintained contemporaneously and are obviously deficient, this approach would not be unreasonable here. Under this alternative approach, a 30% reduction to the requested contingency fee of $4,050 would yield an award of $2,835, which is extremely close to the lodestar figure of $2,940 that this Court recommends.
2. Costs
A party's request for costs is generally governed by Local Civil Rule 54.1. Under this Rule, fees for filings and for service of process are recoverable costs, see Local Civ. R. 54.1(c)(10), but the party must include as part of the request "an affidavit that the costs claimed are allowable by law, are correctly stated and were necessarily incurred." Local Civ. R. 54.1(a). Bills for the costs claimed must be attached as exhibits. Id.
Raysor has failed to provide any invoices, receipts, or similar documentary support for any costs being sought, despite the Court's request that she do so. This failure should not be considered fatal with respect to the Court's $350 filing fee, as the payment of that fee is clearly reflected on the Court's Docket. (See Dkt. 1.) As to the cost of service, however, Raysor's submission is too flawed for this Court to be able to discern the actual cost involved. In her initial Affidavit, Raysor represented that the cost of service was $175. (Raysor Aff. ¶ 10 ("Summons and Complaint was served on the defendants at the cost of $175.").) In her supplemental submission, though, Raysor lists a time entry of 1.5 hours for "Paralegal Served Summons and Complaint" (see Raysor Ltr. and attachment), suggesting that there was no process-server fee, but rather that counsel's office itself undertook to effect service on Defendants. Raysor also states that the paralegal's time for this task should be valued at the rate of $50 per hour, suggesting a cost for service of process of $75. (See id.) Raysor offers no explanation for the inconsistency in her submissions on this point. Moreover, compounding the problem, her supplemental submission shows the calculated cost for service of process by the paralegal to be $525. (See id.) While the listed amount of $525 presumably reflects a computational error, this Court cannot, without any contemporaneous records, find that Raysor has adequately demonstrated the requested cost of service, and I therefore recommend that recovery for this cost be denied. See, e.g., Mateo v. U.S., 2008 WL 3166974 at *5 (where an attorney fails to provide adequate documentation of cost, the Court may decline to award reimbursement for that cost). Accordingly, I recommend that only $350 in costs award from the gross settlement amount.
In sum, I recommend that the proposed settlement amount of $12,500 be approved and paid to the infant plaintiff, less $2,940 in attorney's fees and $350 in costs, which this Court finds to be reasonable and suitable compensation to counsel, based on the limited documentation of fees and costs that has been submitted.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that the terms and conditions of the proposed settlement be approved, subject to the following conditions:
1) Roberts should be authorized and empowered, in the interests of her infant child, to settle and compromise both the infant's claim, as described and set forth in this litigation, and the claim asserted individually by Roberts, on her own behalf, resulting in a lump-sum payment by Defendant of $12,500, in full satisfaction of all claims for damages, attorney's fees, and interest;
2) the sum of $9,210,00 should be paid by the Defendant to Roberts, as parent and custodian of the infant, D.J., to the credit and benefit of D.J., and this sum should be deposited by Roberts into an interest-bearing bank account established in D.J.'s name and held for D.J. in that account until she reaches the age of majority;
3) the sum of $350.00 should be deducted from the settlement amount and paid by the Defendant to Raysor as compensation for the costs incurred in pursuing this action; and
4) the sum of $2,940.00 should be deducted from the settlement amount and paid by the Defendant to Raysor as attorney's fees.
If Roberts has already paid the cost of the $350 filing fee, then this amount should, of course, be refunded to Roberts by Raysor.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three additional days for service by mail). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable John G. Koeltl, 500 Pearl Street, Room 1030, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 525, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Koeltl. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 145, 106 S.Ct. 466, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York
October 16, 2012
Respectfully submitted,
/s/_________
DEBRA FREEMAN
United States Magistrate Judge
Copies to:
Hon. John G. Koeltl, U.S.D.J. Lauren P. Raysor, Esq. Law Office of Lauren P. Raysor, Esq. 11 Penn Plaza Suite 500 New York, NY 10001 Deborah L. Mbabazi, Esq. New York City Law Department 500 Church Street New York, NY 10007