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awarding six hours for work on the fee application, or 3% of the 210 hours spent on the underlying case
Summary of this case from Individually ex rel. K.G. v.Opinion
98 Civ. 7131 00 Civ. 9614 (BSJ)(RLE)
March 8, 2004
OPINION AND ORDER
I. INTRODUCTION
Plaintiff Claude Irish ("Irish") seeks attorney's fees and costs pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 54(d) for work performed by his counsel, Robert Spergel, in litigating his claims in these two cases. For the reasons which follow, the Court awards Irish $54,100.
II. BACKGROUND
Irish sued the City of New York, the New York City Police Department, and Sergeant David Furman, claiming that these defendants violated his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the State and City Human Rights laws. He alleged that he was discriminated against based upon his race, subjected to a hosfile and abusive working environment, and retaliated against for having complained about his treatment. Irish's original complaint (98 Civ. 7131) was filed in 1998 with the assistance of a different attorney. In 2000, Spergel represented Irish in the second case (00 Civ. 9614), and replaced the attorney in the 1998 case. After completion of substantial discovery, the parties entered into a stipulation of settlement as to both cases. Irish signed the agreement on or about April 19, 2003. See Affirmation of Robert H. Spergel ("Spergel Aff."), Exh. A. The parties were not able to agree on a reasonable attorney's fee, and agreed to have the undersigned decide the issue. In support of Irish's application, he has submitted time records maintained by Spergel. Spergel Aff., Exh. B.
III. DISCUSSION
A. Standard for Awarding Attorney's Fees
A plaintiff may recover attorney's fees under 42 U.S.C. § 1988 if he is a "prevailing party" in the litigation. Section 1988 provides, in relevant part, that:
In any action or proceeding to enforce a provision of section . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . .
The Supreme Court has adopted a common sense approach to attorney's fees litigation:
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally, this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit . . . Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.Hensley v. Eckerhart , 461 U.S. 424, 434-35 (1983) (citation omitted). The district court is given broad discretion in granting a fee award and assessing a reasonable fee under the circumstances of the case. Id. at 437; Luciano v. Olsten Corporation , 109 F.3d 111, 115 (2d Cir. 1997).
The starting point for the determination of a reasonable fee is the calculation of the lodestar amount, i.e., "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley , 461 U.S. at 433-34; see Quaratino v. Tiffany Co., 166 F.3d 422, 425 (2d Cir. 1999) ( en banc ). In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours. Quaratino , 166 F.3d at 425. The rate requested should be "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson , 465 U.S. 886, 896 n. 11 (1984); Cruz v. Local Union No. 3. 34 F.3d 1148, 1159 (2d Cir. 1994). The party seeking a fee award bears the burden of producing evidence demonstrating that the requested rates are in line with those prevailing in the community. See Wilder v, Bernstein , 975 F. Supp. 276, 281 (S.D.N.Y. 1997). The court may look to attorney's fees granted in other cases and rely on its own knowledge of the market to determine a reasonable rate. Blum , 465 U.S. at 895. A reasonable attorney's fee is "adequate to attract competent counsel" without resulting in "windfalls to attorneys." Id. at 897; see also Orchano v. Advanced Recovery, Inc. , 107 F.3d 94, 96 (2d Cir. 1997). Generally, the relevant community for determining a reasonable hourly rate is the district in which the case was brought. See Luciano , 109 F.3d at 116; In re Agent Orange Product Liability Litigation , 818 F.2d 226,232 (2d Cir. 1987).
A party seeking fees bears the burden of supporting its claim of hours expended by accurate, contemporaneous time records. See New York State Ass'n for Retarded Children v, Carey , 711 F.2d 1136, 1147-48 (2d Cir. 1983). Time records need not be overly detailed, but must be sufficiently specific so that the Court may assess the reasonableness of time expended in relation to the work performed. See United States Football League v. National Football League , 887 F.2d 408 (2d Cir. 1989), cert. denied , 493 U.S. 1071 (1990); Dailey v. Societe Generate , 915 F. Supp. 1315, 1328 (S.D.N.Y. 1996), aff'd in relevant part, 108 F.3d 451 (2d Cir. 1997).
B. The Reasonable Rate in This Case
1. Irish's Position
Irish seeks a total of $66,125 in attorney's fees and costs for Spergel's work, which is based on a rate of $300 per hour, and which includes 210.4 hours spent on litigating the merits of the claims, and 10 hours on the instant fee petition. In support of the requested rate, he cites a number of cases in this district in which counsel were awarded rates of $300 per hour or more. See, e.g. , Baird v. Bois, Schiller and Flexner, LLP , 219 F. Supp.2d 510, 523 (S.D.N.Y. 2002) (rate of $300 per hour for associate with ten years' experience); Brenlla v. LaSorsa Buick Pontiac Chevrolet Inc. , 2002 WL 1059117, at * 13 (S.D.N.Y. May 28, 2002) (rate of $345 per hour for partner with twelve years' experience and $270 and $175 for senior and junior associates, respectively); Gonzalez v. Bratton , 147 F. Supp.2d 180, 211-12 (S.D.N.Y. 2001) (rate range of $250 to $390 for the most senior attorneys, and $180 to $200 for the most junior attorneys); Colbert v. Furumuto Realty, Inc. , 144 F. Supp.2d 251, 260 (S.D.N.Y. 2001) (rates of $325 and $300 for lead attorneys); Marisol A. v. Giuliani , 111 F. Supp.2d 381, 386-87 (S.D.N.Y. 2000) (rates of $375 for lead counsel and $300 for counsel with ten years' experience); Skold v. American Int'l Group, Inc. , 1999 WL 405539 at *6-7 (S.D.N.Y. June 18, 1999), aff'd, 205 F.3d 1324 (2d Cir. 2000) (rates of $400 for experienced civil rights litigator and $275 for lead counsel). In further support of his position, Irish has submitted an affidavit from Jeffrey L. Goldberg, in which Goldberg asserts that "the hourly rate that Mr. Spergel is requesting is reasonable and proper." Spergel Aff. Exh. C.
Irish asserts that Spergel acted as lead counsel, and is comparable to counsel in the above-cited cases in ability and experience. He maintains that Spergel is an experienced and successful litigator who has handled a number of notable cases over the last six years. He further claims that Spergel, as a former detective in the New York City Police Department, has special knowledge of the policies, practices, and internal workings of the department, and that this knowledge provided him with specific abilities and insights into civil rights litigation against the department. According to Irish, this expertise and experience made Spergel a valuable asset, particularly with respect to discovery issues.
Finally, Irish argues that the Court should use "current rates, rather than historical rates" to account for delay in payment. LeBlanc-Sternberg v. Fletcher , 143 F.3d 748, 764 (2d Cir. 1998); see also Missouri v. Jenkins , 491 U.S. 274, 284 (1989) ("An adjustment for delay of payment is, we hold, an appropriate factor in the determination of what constitutes a reasonable attorney's fee under § 1988"); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air , 483 U.S. 711, 716 (1987) ("[i]n setting fees for prevailing counsel, the courts have regularly recognized the delay factor"); Savoie v. Merchants Bank , 166 F.3d 456, 464 (2d Cir. 1999). He maintains that, but for the repeated delays of defendant, these cases would have been resolved more expeditiously. According to Irish, defendants changed attorneys on at least three occasions, causing numerous delays, and requiring extensions of discovery deadlines. Moreover, he alleges that the new attorneys required additional time in the discovery process to produce documents, and attempted to re-litigate issues argued by their predecessor.
2. Defendants' Position
Defendants argue that "the Court should look at the rates prevailing in the Southern District for attorneys with four to six years of experience who maintain a sole or small firm practice." Defendants' Memorandum of Law in Opposition to Plaintiff's Fee Application ("Deft. Opp."), at 3. They assert that this rate is $225 to $250 per hour. See Marisol A. v. Giuliani , 111 F. Supp.2d at 386 (attorneys with seven to nine years of experience, rates of $230 to $250 per hour); Anderson v. City of New York , 132 F. Supp.2d 239, 243 (S.D.N.Y. 2001) (lead counsel with six years of experience, $250 an hour after a jury verdict); Vishipco Lines v. Charles Schwab Co. , 2003 U.S. Dist. LEXIS 6820, at *5, *8 (S.D.N.Y. April 22, 2003) (attorney with eight years of experience, $225 per hour). They further assert that, because Spergel had only three years' experience when he undertook the litigation, and most of the litigation was conducted when he had less than six years experience, an hourly rate of $200 to $225 per hour is reasonable for him. They maintain that the size of the firm is relevant because larger law firms are assumed to carry a larger overhead. Id. ; see Ranioia v, Bratton , 2003 U.S. Dist. LEXIS 7199, at *20 (S.D.N.Y. Apr. 21, 2003).
Defendants also argue that Spergel spent time on paralegal and clerical tasks, and that these hours should be compensated at lower rates, which they assert are $75 and $50, respectively. See Davis v. New York City Housing Authority , 2002 U.S. Dist. LEXIS 23738, at * 11-12 (S.D.N.Y. Dec. 11, 2002); Entertainment by J J v. Friends II, Inc. , 2003 U.S. Dist. LEXIS 7229, at * 17-18 (S.D.N.Y. Apr. 25, 2003); Lawson v. City , 2000 U.S. Dist. LEXIS 15709, at *6 (S.D.N.Y. Oct. 26, 2000). Similarly, defendants assert that Spergel's rate should be cut in half for travel time. See Broome v. Biondi , 17 F. Supp.2d 230, 234 (S.D.N.Y. 1997); Knoeffler v. Town of Mamakating , 126 F. Supp.2d 305, 313-314(S.D.N.Y. 2000).
3. Analysis
Because plaintiff has the burden of demonstrating that the requested rate is reasonable, the description of his skill and experience must provide an adequate basis for determining the reasonableness of the rate claimed. In his affirmation in support of the fee application, Spergel provides no information concerning his normal billing rate. Nor does he indicate any rate actually awarded him by a court or secured in a settlement. He merely lists cases in which he claims to have been counsel, and does not state the disposition of those cases or whether he was awarded fees in the cases listed. Spergel Aff. ¶ 7. In essence, he asks the Court to agree with him that $300 per hour is the "market rate" for someone in this district with similar skill, ability, and experience. The Court disagrees.
The Court agrees, however, that the it should use "`current rather than historic hourly rates.'" Gierlinger v. Gleason , 160 F.3d 858, 882 (2d Cir. 1998) (quoting Missouri v. Jenkins , 491 U.S. at 284. Spergel graduated from law school in 1997. Based on the its review of the relevant cases, and the rates generally awarded in this district for someone with six to seven years of experience, the Court finds that a reasonable rate for Spergel's time is $250 per hour. While Spergel claims a certain level of expertise in police department matters, he has not carried his burden of demonstrating entitlement to a higher level of compensation compared to attorneys of similar experience.
On the other hand, the Court sees no reason to reduce the hourly rate for the size of Spergel's firm. Defendants argue that the Court should accept the assumption that larger law firms carry a larger overhead and therefore should command a higher rate. There is nothing in the legislative history to support either this assumption or the conclusion to be drawn from the assumption. Even if larger firms have higher overhead, other factors are incorporated into an attorney's fee structure. For example, larger firms may give discounts for the certainty of payment. Smaller firms may have to charge more because of higher contingency factors. Moreover, the defendants present no evidence that overhead is the driving force for the setting of hourly rates in this district.
Finally, the argument that small firms should be compensated at a lower rate is but a variant of positions already rejected by the Supreme Court. In Blum v. Stenson , 465 U.S. 886 (1984), the prevailing plaintiffs had been represented by The Legal Aid Society. The district court had awarded counsel "prevailing market rates," Stenson v. Blum , 512 F. Supp. 690, 685 (S.D.N.Y. 1981), and the Second Circuit had affirmed in an unpublished opinion. Blum v, Stenson , 671 F.2d 493 (2d Cir. 1981). In its petition to the Supreme Court, defendant asserted that hourly rates for prevailing plaintiffs should be based on costs rather than market rates:
Petitioner argues that the use of prevailing market rates to calculate attorneys fees under § 1988 leads to exorbitant fee awards and provides windfalls to civil rights counsel contrary to the express intent of Congress. To avoid this result, petitioner urges this Court to require that all fee awards under § 1988 be calculated according to the cost of providing legal services rather than according to the prevailing market rate. The Solicitor General, as amicus curiae, urges the Court to adopt a cost-related standard only for fee awards made to nonprofit legal aid organizations. He argues that market rates reflect the level of compensation necessary to attract profit making attorneys, but that such rates provide excessive fees to nonprofit counsel. Because market rates incorporate operating expenses that may exceed the expenses of nonprofit legal services organizations, and include an element of profit unnecessary to attract nonprofit counsel, the Solicitor General argues that fee awards based on market rates "confer an unjustified windfall or subsidy upon legal services organizations."465 U.S. at 892-93 (citations and footnote omitted). The Court found that the legislative history "flatly contradicted" petitioner's argument, id. at 894, and concluded that "[t]he statute and legislative history establish that "reasonable fees' under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel." Id. at 895.
A similar challenge was raised in Missouri v. Jenkins , Prevailing plaintiffs had sought compensation for the work of paralegals at prevailing market rates as part of their attorney's fee award. Defendant argued that these hours should be awarded at cost as part of the lower overhead experienced by counsel:
Missouri's second contention is that the District Court erred in compensating the work of law clerks and paralegals (hereinafter collectively "paralegals") at the market rates for their services, rather than at their cost to the attorney. While Missouri agrees that compensation for the cost of these personnel should be included in the fee award, it suggests that an hourly rate of $ 15 — which it argued below corresponded to their salaries, benefits, and overhead — would be appropriate, rather than the market rates of $35 to $50. According to Missouri, § 1988 does not authorize billing paralegals' hours at market rates, and doing so produces a "windfall" for the attorney.491 U.S. at 284. After reviewing the statute and the legislative history, the Court concluded that prevailing plaintiffs were to be paid in a manner to ensure a "fully compensatory fee." Id. at 286 ( citing Hensley v. Eckerhart , 461 U.S. at 435), finding that applying market rates did not provide a "windfall" to counsel:
We reject the argument that compensation for paralegals at rates above "cost" would yield a "windfall" for the prevailing attorney. Neither petitioners nor anyone else, to our knowledge, has ever suggested that the hourly rate applied to the work of an associate attorney in a law firm creates a windfall for the firm's partners or is otherwise improper under § 1988, merely because it exceeds the cost of the attorney's services. If the fees are consistent with market rates and practices, the "windfall" argument has no more force with regard to paralegals than it does for associates. And it would hardly accord with Congress' intent to provide a "fully compensatory fee" if the prevailing plaintiff's attorney in a civil rights lawsuit were not permitted to bill separately for paralegals, while the defense attorney in the same litigation was able to take advantage of the prevailing practice and obtain market rates for such work.Id. at 287. Thus both Blum v. Stenson and Missouri v. Jenkins reject a cost-based approach to determining market rates as contrary to the legislative history of the attorney's fees act.
C. A Reasonable Number of Hours in This Case
1. Irish's Position
Irish argues that he has satisfied the standard of specificity required in this circuit. He notes that Spergel's time records show the date, hours expended, and the nature of the work done. He maintains that these records are accurate and detailed, and were contemporaneously maintained by counsel.
Irish concedes that some of the entries are fairly general, but argues that they are sufficiently detailed when viewed in the context of other entries. See Tran v. Tran , 166 F. Supp.2d 793, 800 (S.D.N.Y. 2001); Bonnie Co, Fashions. Inc v. Bankers Trust Co. , 970 F. Supp. 333, 342 (S.D.N.Y. 1997).
2. The Defendants' Position
Defendants assert that the records submitted in support of the fee application are "vague," that they are presented in "block billed" form, and that they "include time spent on non-legal tasks and travel that are billed at an inflated hourly rate." Deft. Opp., at 2. They maintain, for example, that approximately 195 hours of time entries are so vague that no assessment of reasonableness is possible. See Declaration of Jane R. Goldberg in Opposition to Application for Attorney's Fees and Expenses ("Goldberg Decl."), Exh. D. Included in this category are entries such as "letter to court," "rev letter," and "disc/w client." Defendants also complain that there are entries for research, telephone calls, and correspondence with no indication of the subject matter, or purpose, for these activities. Defendants argue that this vagueness should result in substantial reductions to the hours claimed. See, e.g. , Vishipco Lines . 2003 U.S. Dist. LEXIS 6820, at *6-7 (Ten percent reduction for vague entries); Shannon v. Fireman's Fund Ins. Co. , 156 F. Supp.2d 279, 302 (S.D.N.Y. 2001) (thirty-five percent reduction for vagueness, redundancy, and other problems with entries).
Defendants also claim that hours listed for unamed investigators, consultants and experts should be entirely disallowed because there is no indication of the purpose for which they were retained. See, e.g. , Dailey v. Societe Generate , 915 F. Supp. 1315, 1328 (S.D.N.Y. 1996) (excluding entries for "telephone call," "consultation" and "review of documents" as insufficiently specific to determine whether they were duplicative or excessive). See also In re "Agent Orange Prod. Liab. Litig. , 611 F. Supp. 1296, 1348, 1357 (E.D.N.Y. 1985), aff'd, in part, and rev'd, in part , 818 F.2d 226 (2d Cir. 1987); Ragin , 870 F. Supp. At 515, 520. They maintain that this problem pervades the application, and these hours must be excluded. See Goldberg Decl. Exh. D; see also Kirsch v. Haber , 148 F.3d 149 (2d Cir. 1998).
Finally, defendants assert that use of block billing by Spergel "impede[s] the Court's ability to conduct a review for reasonableness" and the hours presented in this manner should be excluded. Deft. Opp., at 10 (citing Soler v. GU, Inc. , 801 F. Supp. 1056, 1061-62 (S.D.N.Y. 1992) ("commingling of activities within one time entry impedes the court's efforts to evaluate the reasonableness of any of the listed activities. . .")). They claim that there are 172 hours which fall into this category. Goldberg Decl., Exh. E.
3. Analysis
The Court has reviewed Spergel's time sheets, and on first blush they appear to be minimalist, if not vague. This, however, is not fatal to the fee application. "[W]here an attorney's time entries are vague, courts may attempt to decipher them by reference to the `context in which these entries occur [to determine] what work was involved.'" Bonnie Company Fashions. Inc. v. Bankers Trust Co. , 970 F. Supp. 333, 342 (S.D.N.Y. 1997), citing Lenihan v. City of New York , 640 F. Supp. 822, 826 (S.D.N.Y. 1986). The court may also use its knowledge of the case to assess the time entries. Algie v. RCA Global Communications, Inc. , 891 F. Supp. 875, 894 (S.D.N.Y. 1994), aff'd , 60 F.3d 95 (2d Cir. 1995) ( citing Clark v. Frank , 960 F.3d 114671153 (2d Cir. 1992.).
Here, the Court did not have to speculate about many of the items. Many of the criticisms raised in the Goldberg affidavit concern letters to the Court. A simple review of these letters provides appropriate context for the tasks performed. An entry of "letter to court" is not so mysterious when the Court and opposing counsel have access to the letter For example, Goldberg lists as "vague" a "08/30/02"entry of "letter to court research/review" for two hours. Goldberg Decl., Exh. D. The Court has a copy of this letter. The first paragraph of that letter states:
Plaintiff writes this time in response to defendants' letter and affidavits supplied to the Court on August 26, 2002. Firstly, I have just received a copy by fax of the affidavits, and as such am responding.
The Court has reviewed this and other similar entries, and finds that, in context, the record entries adequately inform it of "the nature or subject of the work." Tran v. Tran , 166 F. Supp.2d 793, 800 (S.D.N. Y. 2001); see also , Hensley , 461 U.S. at 437 n. 12 ("[C]counsel should identify the general subject matter of his time expenditures."). The Court is mindful that there have been several counsel changes for defendants, but before challenging an entry as "vague," the current counsel has an obligation to review the defendants' own files. This was a particularly contentious case during discovery, and the Court finds no basis to make a general deduction for vagueness.
Remarkably, defendants maintain that 194.4 of Spergel's hours are too vague to determine if they were reasonably expended. Many of the hours, however, were the result of disagreements among counsel. In this context, both the Court and defendants were in a position to evaluate the reasonableness of the time expenditures.
Many of defendants' concerns about block billing fail for the same reason. When one reviews the August 30, 2002 letter, for example, the time expended is reasonable for the tasks included. No general deduction is warranted.
Finally, defendants assert that Spergel has requested attorney rates for clerical or paralegal tasks. A review of Spergel's affidavit shows that any such hours are de minimus. Moreover, the Court credits Spergel's representation that the nature of these activities in the context of this case required an attorney's attention.
Although Spergel mentions a charge of $1500 for an "outstanding consultant fee" in one of his letters to defendants, no further support is presented for this charge, and the Court will not speculate about its nature. See Spergel Aff., Exh. B. No award will be made for this claim.
Finally, Spergel claims $3000 for the fee application, presumably for ten hours work. Having reviewed the affirmation and accompanying memorandum, the Court finds that six hours would have been adequate to produce these documents, as they reveal minimal research and preparation.
IV. CONCLUSION
The Court awards Irish compensation for 210.4 hours of Spergel's time on the merits and six additional hours on the fee application. At $250 per hour, this results in a total fee award of $54,100.