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Civ. Action No. 9:01-CV-1284 (NAM/DEP).
May 16, 2006
TOBIN, DEMPF LAW FIRM KEVIN A. LUIBRAND, ESQ., Albany, NY, for plaintiff.
PAUL MULLIN, ESQ., SUGARMAN, WALLACE LAW FIRM, For Defendant County of Schoharie, Syracuse, NY, KEVIN P. BURKE, ESQ, PHELAN, BURKE LAW FIRM, For Defendant County of Schenectady, Albany, NY, for defendants.
FELDMAN, KLEIDMAN LAW FIRM ANDREW REGENBAUM, ESQ., Fishkill, NY, Attorneys for Remaining Defendants.
REPORT AND RECOMMENDATION
Plaintiff Byron Lake, who at the relevant times was a prison inmate held in local custody, commenced this action claiming deliberate indifference to his serious medical needs, in violation of the Eighth Amendment to the United States Constitution. At trial, plaintiff was successful in establishing liability on the part of various of the defendants, including the County of Schoharie, the County of Schenectady, EMSA Correctional Care, Inc. ("EMSA"), and Phyllis Harrison, and was awarded compensatory damages against all defendants, without apportionment, in the amount of $150,000, and an additional sum of $632,988 in punitive damages as against defendant EMSA. In a decision addressing post-trial motions filed by the defendants, the trial court set aside certain portions of the jury's verdict, including the punitive damage award, and ordered dismissal of all claims against Schoharie County.
The Eighth Amendment's prohibition against cruel and unusual punishment extends only to sentenced prisoners. Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003). Neither plaintiff's complaint nor the record now before me discloses plaintiff's status at the time of the relevant events, including whether he was a pretrial detainee, or instead a sentenced defendant. In the event that plaintiff was a pretrial detainee at the pertinent times, he nonetheless enjoyed a Fourteenth Amendment due process right to be free from deliberate indifference to his serious needs under case law which is largely congruent with Eighth Amendment jurisprudence. Id.
As a prevailing party, plaintiff now seeks recovery of attorneys' fees pursuant to 42 U.S.C. § 1988. The remaining defendants have opposed that request on a variety of grounds arguing, inter alia, that plaintiff has not submitted the proper documentation to support his claim, and that both the hourly rates sought and the number of hours claimed to have been expended are excessive. Plaintiff's fee application has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). See also Fed.R.Civ.P. 72(b).
I. BACKGROUND
Plaintiff commenced this action on August 14, 2001. Dkt. No. 1. In his complaint Lake, who throughout this proceeding has been represented by counsel, alleged that during the relevant times beginning in August of 1998 he was an inmate in the custody of Schenectady County. Plaintiff asserts that on August 7, 1998 he was moved out of the Schenectady County Jail, apparently as a result of overcrowding at the facility, and was transferred to the Schoharie County Jail. Relatively shortly after that transfer Lake began experiencing chest pains, numbness in his arms, and difficulty in breathing. After attempting, without success, to contact Schoharie County's primary physician, prison officials at the facility transferred the plaintiff back to Schenectady County on August 16, 1998, without rendering any significant treatment for his symptomology.
While back at Schenectady, plaintiff was treated by defendant EMSA, a for-profit entity engaged under contract with Schenectady County to provide medical services at the prison facility. Based upon an initial examination of the plaintiff on the morning of August 16, 1998, EMSA employee Jeffrey Crandall, a nurse, determined that Lake's condition did not warrant hospitalization. The next day, however, after Lake complained of being very ill, another EMSA employee was called to examine him. Following that examination and a consultation with an EMSA physician, plaintiff was sent for medical treatment to Ellis Hospital, where it was later learned that he had suffered from a heart attack.
II. PROCEDURAL HISTORY
After a protracted period of pretrial discovery and the filing of separate, unsuccessful summary judgment motions by the various defendants, a jury trial was conducted in this matter by Visiting Senior District Judge Donald E. Walter, from the Western District of Lousiana, beginning on July 12, 2005 and continuing until the return of the jury's verdict on July 15, 2005. In its verdict the jury found liability on the part of Schoharie and Schenectady Counties as well as EMSA and Phyllis Harrison, awarding $150,000 in compensatory damages as against those four defendants, and $632,988 in punitive damages solely as against defendant EMSA. There was no apportionment by the jury of its compensatory damage award.
Following the timely filing by the parties of post-trial motions, District Judge Walter issued a memorandum ruling on December 29, 2005, Dkt. No. 121, and a later, amended memorandum ruling on January 3, 2006, Dkt. No. 122, partially setting aside the jury's verdict and dismissing all claims as against defendant Schoharie County, and additionally directing the entry of judgment in favor of EMSA as to plaintiff's punitive damage claim, leaving intact the compensatory damage award against defendants Schenectady County, Phyllis Harrison, and EMSA. In that decision Judge Walter also referred plaintiff's application for costs and attorneys' fees, which was made as a cross-motion to defendants' post-trial motions, to me for the issuance of a report and recommendation. Dkt. No. 122.
III. DISCUSSION
A. Timeliness of Plaintiff's Fee Application
In its opposition to plaintiff's fee application Schenectady County argues that it should be denied as untimely. Defendants' timeliness argument is based upon the fact that plaintiff's fee application was filed more than fourteen days after the return of the jury's verdict and the ensuing entry of judgment on July 15, 2005.
The filing of an application for attorneys' fees is controlled by a rule which provides, in pertinent part, that "[u]nless otherwise provided by statute or order of the court, the motion [for non-taxable costs of attorneys' fees] must be filed no later than 14 days after entry of judgment[.]" Fed.R.Civ.P. 54(d)(2)(B). Based solely upon a strict reading of the language of this provision, it would appear that plaintiff's application, which was not filed until August 12, 2005, did not satisfy this requirement and should accordingly be rejected as untimely.
The facial harshness of Rule 54(d)(2)(B) has been ameliorated by intervening case authority adopting a pragmatic approach to the filing of such fee applications. In Weyant v. Okst, by way of example, the Second Circuit made it clear that the intent of the fourteen day time limit, which was introduced into the rules in 1993, was to avoid piecemeal appeals by requiring the prompt filing of an attorneys' fee application following the entry of a judgment which would be viewed as final, and thus appealable. 198 F.3d 311, 314 (2d Cir. 1999). Accordingly, the court in Weyant concluded, an interim judgment entered based upon a jury's verdict, but subject to anticipated or outstanding post-trial motions under Rules 50 and 59 of the Federal Rules of Civil Procedure, should not be regarded as final in the sense contemplated by Rule 54(d), and as such an application filed within fourteen days after final resolution of such motions should be deemed timely. Id. at 314-15; see also EEOC v. Quick Quality Rests., Inc., No. 04 Civ. 2472, 2006 WL 375173, at *1 (S.D.N.Y. Feb. 16, 2006) (citing Weyant).
Since plaintiff's fee application in this action was filed prior to resolution of the timely filed post-trial motions and the resulting entry on January 3, 2006 of an amended judgment, it was timely.
During oral argument, the defendants suggested that based upon this chronology plaintiff's fee application was in fact premature, and proposed that the court defer ruling upon it until resolution of the cross-appeals contemplated by the parties. While additional motion practice to address the issue of additional attorneys' fees incurred in connection with the pending appeal and any subsequent proceedings in this court, should plaintiff's claims survive on appeal, may well be unavoidable, this possible eventuality does not provide a basis to defer ruling upon the pending fee application. To accept defendants' argument and defer a ruling on the attorneys' fees issue until resolution of the pending cross-appeals would almost certainly prompt a second appellate challenge and, accordingly, would run contrary to the Second Circuit's teaching that Rule 54(d) and its time limit was intended to avoid piecemeal appeals by consolidating of appellate resolution of issues of the type now raised by the parties in opposition to plaintiff's fee application with other, substantive arguments raised on appeal.
B. Legal Effect of Rejected Offer of Judgment
In its opposition to plaintiff's fee application, Schenectady County argues that plaintiff's failure to accept a $10,000 offer of judgment, later increased to $15,000, precludes his recovery of any attorneys' fees in the case. In support of its argument in this regard Schenectady County, despite having been found jointly and severally liable for compensatory damages in the amount of $150,000, maintains that under the facts of the case its liability to the plaintiff should properly be viewed as less than the amount of the rejected offers, thereby stripping Lake of his prevailing party status.
Offers of judgment such as those made in this action by Schenectady County are governed by Rule 68 of the Federal Rules of Civil Procedure. In the case of an offer of judgment which is made but not accepted, that rule provides that "[i]f the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." Fed.R.Civ.P. 68. This rule has been construed by the courts as precluding a plaintiff who has prevailed, but not to the extent of a rejected offer of judgment, from seeking recovery of attorneys' fees and costs incurred after the offer was made. Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012 (1985); see Jolly v. Coughlin, 92 CIV. 9026, 1999 WL 20895, at *9 (S.D.N.Y. Jan. 19, 1999); Amato v. City of Saratoga Springs, 991 F. Supp. 62, 68 (N.D.N.Y. 1998) (McAvoy, C.J.) (citing, inter alia, Marek).
In this instance it appears that the highest offer of judgment made by Schenectady County was in the amount of $15,000. The judgment entered against Schenectady County, following the court's post-trial rulings, by contrast, was in the amount of $150,000. While Schenectady County requested an allocation of damages among the various defendants, the trial court declined to make such an apportionment. Accordingly, as much as it would like to believe that its culpability did not equate to $15,000 or more of damages, the fact is that Schenectady County has been found to be liable, jointly and severally, to the plaintiff in an amount greater than that offered. Accordingly, plaintiff's failure to accept defendant Schenectady County's Rule 68 offers of judgment does not preclude him from seeking attorneys' fees in full in this action, as a prevailing party. Bright v. Land O' Lakes, Inc., 844 F.2d 436, 443 (7th Cir. 1988).
C. Applicability of Prison Litigation Reform Act Cap
During the hearing held to address plaintiff's fee application, defendants' counsel argued that any resulting award is subject to the ceiling imposed under 42 U.S.C. § 1997e(d), effectively capping such a recovery at 150% of the judgment amount entered or, in this case, $225,000. After being asked to brief the issue, defendants have since retreated from this position, acknowledging that the cap does not directly apply, since plaintiff was not a prison inmate at the time of commencement of the action, but urging the court nonetheless to extend this section's coverage to plaintiff's application based upon the Act's underlying policy considerations.
The inmate litigation landscape was considerably altered in 1996 with the passage of the Prison Litigation Reform Act (" PLRA"), Pub.L. 104-134, 110 Stat. 1321 (1996). One feature introduced under the PLRA was a provision which effectively caps recovery under 42 U.S.C. § 1988 of attorneys' fees in an inmate civil rights action to 150% of the amount of the judgment entered in the case. Torres v. Walker, 356 F.3d 238, 242 (2d Cir. 2004). That section also goes on to restrict the hourly rate to be used in calculating such fee awards. 42 U.S.C. § 1997e(d)(3).
42 U.S.C. § 1997e(d) provides, in relevant part, as follows:
(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that —
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and
(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.42 U.S.C. § 1997e(d)(1) (2) (internal footnotes omitted).
As defendants now acknowledge, the cap imposed under section 1997e(d) does not apply in an action filed by a former prison inmate after his or her release, even if the civil rights violation at issue is alleged to have occurred while the plaintiff was incarcerated. Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998); Morris v. Eversley, 343 F. Supp.2d 234, 239-40 (S.D.N.Y. 2004). Section 1997(e) is therefore not directly applicable in plaintiff's case, since he had been released from custody by the time of the filing of his complaint. While defendants nonetheless urge the court to apply the cap based upon the policy considerations which led Congress to adopt that particular portion of the PLRA, acceptance of the defendants' argument would result in judicial redrafting of the statute to extend its scope beyond the coverage intended by Congress. I therefore respectfully decline defendants' invitation to recommend application of the PLRA's cap under the circumstances now presented.
D. The Merits of Plaintiff's Application: Governing Legal Framework
Plaintiff's fee application is made pursuant to 42 U.S.C. § 1988. That section authorizes the court, in its discretion, to "allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs" in civil rights action such as this, brought under 42 U.S.C. § 1983. 42 U.S.C. § 1988(b). Under this fee shifting provision, which represents a significant departure from the general "American Rule" requiring that a litigant, however successful in pursuit of its claims, bear its own costs and attorneys' fees, a prevailing plaintiff in a section 1983 action is generally entitled to recover reasonable costs and attorneys' fees. Marek, 473 U.S. at 8, 105 S. Ct. at 3016. The practice of awarding attorneys' fees to prevailing plaintiffs in such civil rights actions serves "to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel." Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1982). Since plaintiff is clearly a prevailing party as against defendants Schenectady County and EMSA, and those defendants do not argue otherwise, I find that an award of costs and attorneys' fees is warranted.
E. Fee Award Calculation
The question of how much to award as costs and attorneys' fees is a matter entrusted to the sound discretion of the court. Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1183 (2d Cir. 1996). The determination of reasonable attorneys' fees in a case such as this is informed by several factors of varying degrees of relevance, including 1) the time and labor required; 2) the novelty and complexity of the questions presented; 3) the skill required to perform the legal services at issue; 4) whether the attorneys handling the matter were precluded from acceptance of other engagements as a result of taking on the matter; 5) the fee customarily charged for similar work; 6) the nature of the fee arrangement — that is, whether it was fixed or contingent; 7) time limitations experienced in the case; 8) the amount at stake and result achieved; 9) the ability, experience and reputation of the attorneys; 10) the inherent undesirability of the taking on the matter; 11) the nature and length of the professional relationship between the attorneys and the client; and 12) the extent of fee awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974); see also Hensley v. Eckerhart, 461 U.S. 424, 429-30, 103 S. Ct. 1933, 1937-38 (1983) (citing Johnson).
Courts, including those within this circuit, typically resort to a two step procedure in measuring the reasonableness of a fee award request. Cohen v. West Haven Bd. of Police Comm'rs, 638 F.2d 496, 505 (2d Cir. 1980); McKever v. Vondollen, 681 F. Supp. 999, 1002 (N.D.N.Y. 1988) (Cholakis, J.) (citing, inter alia, Cohen); see also Luciano v. Olsten Corp., 925 F. Supp. 956, 961-62 (E.D.N.Y. 1996), aff'd, 109 F.3d 111 (2d Cir. 1997). First, the court must determine the appropriate "lodestar" figure by multiplying the number of reasonably expended hours by the hourly rate customarily charged in the relevant community for similar services by professionals of reasonably like skill in the same area of practice. Farbotko v. Clinton County of New York, 433 F.3d 204, 208-09 (2d Cir. 2005); City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir. 1977); Luciano, 925 F. Supp. at 961-62. The lodestar figure is the presumptively reasonable value of the services compensation for which is being sought. See Farbotko, 433 F.3d at 208; Amato, 991 F. Supp. 62, 67 (N.D.N.Y. 1998). Once having determined the appropriate lodestar figure, the court must next determine whether an adjustment of the lodestar amount is justified. Cohen, 638 F.2d at 505. In deciding whether to make such an adjustment, the court must look to the factors articulated by various courts, including the Fifth Circuit in Johnson, as bearing upon the reasonableness of a fee award, although many of those factors are generally regarded as having been already factored into the initial lodestar calculation. Amato, 991 F. Supp. at 67; Luciano, 925 F. Supp. at 962.
As the Supreme Court has observed,
[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services.Hensley, 461 U.S. at 433, 103 S. Ct. at 1939. In Hensley, the Supreme Court went on to note that in determining a proper fee, the court should determine whether the plaintiff achieved "a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award[.]" Id. at 434, 103 S. Ct. at 1940.
1. Reasonable Hourly Rate
For purposes of making a lodestar calculation, the reasonable hourly rate to be applied is that "prevailing in the [relevant] community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S. Ct. 1541, 1547 (1984). Thus, while an attorney's normal billing rate may provide a suitable starting point, since it is generally indicative of his or her legal reputation and status, e.g., City of Detroit, 495 F.2d at 473; Zacharias v. Shell Oil Co., 627 F. Supp. 31, 35 (E.D.N.Y. 1984) (citing City of Detroit), the critical inquiry must take into consideration both the experience, skill and reputation of the attorney or paralegal requesting the fees and the prevailing market rate in the community for similar services of professionals of reasonably comparable skill, experience and reputation. D'Emanuele v. Montgomery Ward Co., Inc., 904 F.2d 1379, 1384 (9th Cir. 1990); McCann v. Coughlin, 698 F.2d 112, 130 (2d Cir. 1983).
When determining the reasonable hourly rate to be applied the court is guided by prevailing rates in the community at the time of making the fee award, rather than those applicable when the services were rendered. Farbotko, 433 F.3d at 211, n. 11 (citing, inter alia, Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998)). This adjustment serves to offset the economic impact of the delay, oftentimes considerable, in receiving compensation for legal services rendered.
Both sides urge the court to look to prior case authority from this district as indicative of the establishment of a benchmark for reasonable hourly rates in these types of cases. Plaintiff argues that the rates to be applied have been established at $210 for experienced attorneys, $150 for associates with more than four years of experience, $120 in the case of associates with less than four years experience, and $80 for paralegals, as a result of my colleagues' decisions in Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, No. 03-CV-502, 2005 WL 670307, at *6 (N.D.N.Y. Mar. 22, 2005) (Homer, M.J.), adopted in full, 419 F.Supp.2d 206 (N.D.N.Y. 2005) (Mordue, J.). Defendants counter that as recently as June of 2005 the reasonable hourly rates recognized in this district for services of the nature now at issue remained at $175 for experienced attorneys, $125 for attorneys with four or more years of experience, $100 per hour for attorneys with less than four years experience, and $65 per hour for paralegals. Davis v. Yellow Freight Sys., Inc., No. 5:03 CV 328, 2005 WL 1388889, at *2 (N.D.N.Y. June 8, 2005) (Scullin, C.J.).
In a relatively recent decision addressing fee awards under section 1988, the Second Circuit rejected the notion that a reasonable hourly rate can be ascertained simply by reference to rates awarded in prior cases and thus regarded as "the norm" by a court, instead noting that the governing test "contemplates a case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant's counsel." Farbotko, 433 F.3d at 209. This is not to say that the rates utilized by a court in other cases are wholly irrelevant; indeed, in Farbotko, the Second Circuit went on to note that a court could look to its own familiarity with the market, taking judicial notice of rates awarded in prior similar cases. Id.
The burden of establishing a reasonable hourly rate for the services in issue rests with the fee applicant. Id. In this case, the plaintiff has submitted nothing of evidentiary value to sustain that burden, instead relying heavily upon this court's prior decisions, including principally in Arbor Hill, and thus leaving the court somewhat disadvantaged in determining the appropriate hourly rate to apply. Nonetheless, based upon the court's experience in this area, and having surveyed fee awards in similar cases, like Judges Homer and Mordue I conclude that rates previously utilized by this court in cases of a similar nature are not inconsistent with those prevailing in the community, and therefore endorse their findings that in this type of case the reasonable hourly rates in the community for similar services of professionals of reasonably comparable skill, experience and reputation include $210 for experienced attorneys, $150 for associates with more than four years of experience, $120 for lesser experienced associates, and $80 for paralegals. Arbor Hill, 2005 WL 670307, at *6. These rates appear to be reasonably consonant with rates awarded in this and other contiguous and nearby districts in similar cases. Commission Express Nat'l, Inc. v. Rikhy, No. CV-03-4050, 2006 WL 385323, at *6 (E.D.N.Y. Feb. 17, 2006) ("Hourly rates approved in recent Eastern District of New York cases have ranged from $200 to $300 for partners; $100 to $150 for junior associates and $200 to $250 for senior associates. Rates for paralegals range from $60-$75."); McPhatter v. Cribb, No. 97-CV-0360, 2000 WL 743972, at *3 (W.D.N.Y. May 25, 2000) ($125 for senior associate and $240 for partner); see also Sabatini v. Corning-Painted Post Area Sch. Dist., 190 F.Supp.2d 509, 516 (W.D.N.Y. 2001) (collecting cases).
2. Number of Hours Reasonably Expended
Adopting the methodology approved by the Second Circuit in Cruz v. Local Union No. 3 of International Brotherhood of Electrical Workers, 34 F.3d 1148, 1160-61 (2d Cir. 1994), plaintiff has parsed out his fee application into groupings, corresponding with various phases of the case, including 1) investigation and discovery excluding depositions (April 20, 2000 to December 5, 2003); 2) pretrial depositions (May 28, 2002 to February 11, 2003); 3) pretrial motions (November 6, 2002 to March 4, 2004); 4) trial preparation (March 18, 2004 to July 14, 2005); 5) trial (July 12, 2005 to July 15, 2005); 6) post-trial motions (July 22, 2005 to August 12, 2005) and 7) attorneys' fee application preparation (July 18, 2005 to August 12, 2005). See also Bridges v. Eastman Kodak Co., 91 Civ. 7985, 1996 WL 47304, at *5 (S.D.N.Y. Feb. 6, 1996), aff'd, 102 F.3d 56 (2d Cir. 1996). Based upon the time recorded in each of these categories, as set forth in plaintiff's initial application, Dkt. No. 107, and supplemented by a later submission, Dkt. No. 137, plaintiff seeks a total fee award as reflected in the following calculations:
Attorney/Paralegal Hourly Rate Hours Subtotal Kevin A. Luibrand $210 897.35 $188,443.50 Adrienne Kerwin $150 139.05 $ 20,857.50 Jennifer Clarke Smerk $150 2.00 $ 300.00 Janet Murray $ 80 98.10 $ 7,848.00 ___________ TOTAL $217,449.00
Addressing each of plaintiff's categories, defendants assert that the hours expended are excessive, many of the services performed are redundant, the records maintained by the plaintiff are improper and include block billing, and the result achieved does not justify the amount sought.
I have reviewed plaintiff's time records, and find the methodology employed to record and reconstruct time for purposes of the pending fee application to be consistent with that endorsed by the courts, including in Cruz. 34 F.3d at 1160; see also David v. Sullivan, 777 F. Supp. 212, 223 (E.D.N.Y. 1991) ("[a]ttorney affidavits which set forth all charges with the required specificity but which are reconstructions of the contemporaneous records" deemed acceptable). Based upon my careful examination of those records, I find no basis to reject the many time entries which appear to group multiple tasks into single, block time entries.
Defendants' billing format objection appears to be based principally upon cases which have been critical of block billings which group together both compensable and non-compensable time, making it impossible to distinguish between them and determine the number of hours for which the applicant is entitled to recovery, or where items such as travel time to be compensated at a reduced rate are not segregated, but instead are improperly combined with other services to be compensated at full rates. See, e.g., Domegan v. Ponte, 972 F.2d 401, 424-25 (1st Cir. 1992), vacated, 507 U.S. 956, 113 S. Ct. 1378 (1993); Sea Spray Holdings, Ltd. v. Pali Financial Group, Inc., 277 F. Supp.2d 323, 325-26 (S.D.N.Y. 2003); Gonzalez v. Bratton, 147 F. Supp.2d 180, 213 (S.D.N.Y. 2001), aff'd, 48 Fed. Appx. 363, 2002 WL 31317871 (2d Cir. 2002) (unpublished). In this instance, while there are many entries claiming large numbers of billable hours, there is adequate description of the time expended, and none of those entries appear to include non-compensable or travel time. Accordingly, I find no impropriety to the methodology employed by plaintiff's counsel to record time expended in connection with this matter.
In response to a direct question addressing this issue, plaintiff's counsel assured the court that no travel time is being claimed in the pending fee application.
Having reviewed the detailed itemization accompanying plaintiff's fee application, including a helpful chart comparing legal services performed by different professionals on the same dates for the purpose of examining the issue of redundancy, I do not find that there was significant overlap or duplication of effort in connection with the legal services performed and corresponding amounts now claimed. I do find, however, that some of the amounts sought in various categories are excessive, and certain of the entries lack sufficient detail to enable the court to intelligently discern the reasonableness of the services performed. By way of example, certain entries speak in terms of reviewing discovery materials, but do not identify the particular defendants or the discovery at issue. See, e.g., Luibrand Aff. (Dkt. No. 105) Exh. B, entries dated 9/28/01, 10/19/01. In terms of excessiveness of hours plaintiffs' attorneys, with recognized and self-proclaimed expertise in the area of civil rights litigation, seek compensation for an unusually large number of hours for investigation and preparation of a complaint which, given the experience that they themselves profess to have in handling such matters, should have been prepared with considerably less effort. I note also, as but one example of the extravagance exercised in the performance of legal services on plaintiff's behalf, that a total of fifteen hours were expended by an associate in reviewing newspaper articles for evidence regarding the county's contract with defendant EMSA. See Luibrand Aff. (Dkt. No. 105) Exh. B, entries 5/23/01-5/29/01.
It appears that those efforts were unsuccessful, leading to a review of Schenectady County Legislature minutes and the preparation of the Freedom of Information Law ("FOIL") request under N.Y. Public Officers Law Art. 6. See Luibrand Aff. (Dkt. No. 105) Exh. B, entries dated 6/1/01 and 6/4/01.
Based upon my review of the case and experience in similar cases, I find that the number of hours claimed by plaintiff's counsel is excessive, and reduce it as follows in each of the categories reflected:
In making its determination regarding the reasonableness of the hours expended the court must bring to bear the familiarity with the case; in this regard, the court "does not play the role of an uninformed arbiter[.]" Arbor Hill, 2005 WL 670307, at *7. While I did not preside over the trial in this matter, all pretrial matters in the case, including a conference held pursuant to Rule 16 of the Federal Rules of Civil Procedure and several follow-up pretrial conferences with attorneys for the parties, were conducted by me, giving me considerable familiarity with the issues presented.
a) Initial Investigation Through Filing of Complaint
A review of the billing records submitted by plaintiff's counsel in support of his fee application reveals that from the time of an initial conference with the plaintiff on April 20, 2000 until the filing on August 14, 2001 of a complaint, plaintiff's attorneys expended fifteen hours in meeting with the client, investigating, and performing research, as well as an additional period of excess of fifty hours leading up to the filing of the complaint. In addition, as mentioned earlier, during that same time period a paralegal expended some twenty-one hours in an apparent attempt to discern the relationship between Schenectady County and EMSA. Having reviewed the complaint, and based upon my familiarity with the case and others of this nature, I find these amounts to be excessive, and will therefore recommend reduction of them to the following to cover the period through the filing of the initial complaint:
Attorney/Paralegal Hours Claimed Adjusted Hours
Kevin A. Luibrand 18.00 12.0 Adrienne Kerwin 47.35 30.0 Janet L. Murray 21.10 10.0
b) Filing of Complaint Through Motion Filing
During the period from August of 2001 until the filing of summary judgment motions in May, 2003, the parties were engaged in efforts principally focused upon pretrial discovery, as well as participation in conferences with the court. By all accounts, as evidenced by time records submitted by plaintiff's attorneys, discovery was extensive and involved both written discovery and review of voluminous medical records, as well as the deposition of the plaintiff and roughly twenty-three other witnesses. During that time period, in excess of 270 hours of legal services was recorded by plaintiff's attorneys. While I do not find that the time expended over this period was grossly excessive, I will recommend that it be reduced slightly, as follows:
Much of the time expended by associate Adrienne Kerwin during that time period appears to have entailed research in anticipation of the filing of summary judgment motions.
Attorney/Paralegal Hours Claimed Adjusted Hours
Kevin A. Luibrand 185.75 150.0 Adrienne Kerwin 91.70 70.0
c) Motions
The next phase of the case involved the filing of and opposition to defendants' motions for summary judgment, interposed in May of 2003. Those motions resulted in the issuance of a decision by District Judge Norman A. Mordue on February 27, 2004 resolving those motions chiefly in plaintiff's favor. See Dkt. No. 61. Over that time over 200 hours were expended on plaintiff's behalf, all by the partner in charge of the action. While the total time recorded during this phase in the case in and of itself is not necessarily excessive, the relevant records reveal that over that time period Attorney Luibrand performed a great deal of research and work that could more efficiently have been assigned to associates with lower billing rates. Accordingly, I recommend that the compensable hours for this period be adjusted, as follows:
Defendants have complained of the amount of time spent by the plaintiff's attorneys in responding to their summary judgment motions. Their arguments in this regard point out the need for a defendant in a case of this nature, when considering such a motion, to weigh the potential for success against the significant fee application increase which will invariably result from it, if unsuccessful.
Attorney Name Hours Claimed Adjusted Hours
Kevin A. Luibrand 220.25 175.0
d) Trial Preparation and Trial
Time recorded for the period from March of 2004 until the return of the jury's verdict on July 15, 2005 was expended principally in preparing for and participating in the trial of this matter. During this phase of the case time was recorded by both Attorney Luibrand and Paralegal Murray. While there are many entries claiming large blocks of time expended, several in excess of ten hours on a given day, I do not find the billable time claimed during this period to be greatly excessive, and thus will recommend only a modest adjustment, as follows:
Attorney/Paralegal Hours Claimed Adjusted Hours
Kevin A. Luibrand 359.45 300.0 Jennifer Clarke Smerke 2.00 2.0 Janet Murray 32.05 30.0
e) Post-Trial Motions
Following trial, the parties engaged in post-trial motion practice, resulting in the issuance on December 29, 2005 of a memorandum ruling by the trial judge, the Hon. Donald E. Walter, and an amended memorandum ruling on January 3, 2006. See Dkt. Nos. 121, 122. Once again, finding the hours expended in connection with those efforts, and excluding the amount associated with plaintiff's fee application, not to be significantly excessive, I recommend compensation for the following hours expended within that timeframe:
Attorney/Paralegal Hours Claimed Adjusted Hours Kevin A. Luibrand 57.75 45.0 Janet Murray 25.70 20.0
f) Fee Application
The final category of time relates to the filing of plaintiff's fee application. It is well established that under fee shifting statutes like section 1988, such efforts are compensable as part of a fee award. Gagne v. Maher, 594 F.2d 336, 343-44 (2d Cir. 1979), aff'd, 448 U.S. 122, 100 S. Ct. 2570 (1980). Having reviewed the matter carefully, I recommend that the following hours be compensated in connection with the application for attorneys' fees:
Attorney/Paralegal Hours Claimed Adjusted Hours
Kevin A. Luibrand 56.15 40.0 Janet Murray 19.25 15.0
Portions of the time expended between August 22, 2005 and September 8, 2005, as reflected in plaintiff's reply memorandum, Dkt. No. 119, may relate to response to defendants' substantive arguments, although this is difficult to determine from the time entries.
3. Lodestar Calculation
Based on these calculations, I recommend a lodestar fee award calculation as follows:
Attorney/Paralegal Hourly Rate Hours Subtotal
Kevin A. Luibrand (Partner) $210 722 $151,620 Adrienne Kerwin (Associate) $150 100 $ 15,000 Jennifer Clarke Smerke $150 2 $ 300 (Associate) Janet L. Murray (Paralegal) $80 75 $ 6,000 ________ TOTAL $172,920
4. Lodestar Adjustment
Having determined the lodestar amount to be recommended, I must next determine whether an adjustment of that amount is warranted. Both sides have lobbied for such a modification, plaintiff urging that an increase is justified based upon the complexity of the case and the result achieved, with defendants arguing in favor of a downward adjustment based upon the lack of success against Schoharie County, the relative simplicity of the case, and the limited duration of the trial.
In deciding whether to make an adjustment the court must not lose sight of the fact that there exists a "'strong presumption' that the lodestar represents the 'reasonable' fee." City of Burlington v. Dague, 505 U.S. 557, 562, 112 S. Ct. 2638, 2641 (1991) (citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S. Ct. 3088, 3098 (1986). A party seeking adjustment of the lodestar amount therefore bears the burden of establishing a basis for the requested refinement. City of Burlington, 505 U.S. at 562, 112 S. Ct. at 2641 (citing Blum, 465 U.S. at 898, 104 S. Ct. at 1548). In making an adjustment to the lodestar amount, the court should be guided by the various relevant factors including those enunciated by the Supreme Court in Hensley, with the plaintiff's success being perhaps the most singularly important guidepost. See Farrar v. Hobby, 506 U.S. 103, 114, 113 S. Ct. 566, 574 (1992); Patterson v. Julian, 250 F. Supp.2d 36, 46 (N.D.N.Y. 2003) (Hurd, D.J.), aff'd in relevant part, 370 F.3d 222 (2d Cir. 2004).
Defendants contend that the lodestar figure must be significantly adjusted to reflect that plaintiff failed to achieve success on all of his claims. It is true that plaintiff was not fully successful in the case, having lost on his claims against Schoharie County. Reduction based upon lack of complete success must be applied cautiously, however, particularly when the legal claims upon which plaintiff succeeded and those which were dismissed "involve a common core of facts or [are] based upon related legal theories." Patterson, 250 F. Supp.2d at 46 (citing and quoting, inter alia, Hensley, 461 U.S. at 435, 103 S. Ct. at 1940). "[W]here much time is devoted to the litigation as a whole, making the division of time among the successful and unsuccessful claims particularly difficult, a downward reduction is less appropriate." Patterson, 250 F.Supp.2d at 46 (citations omitted).
Since plaintiff is not a prevailing party on his claims against Schoharie County, his counsel should not be compensated for legal services performed purely in pursuit of his claims against that defendant. Unfortunately, however, it is difficult to isolate work associated exclusively with plaintiff's claims against Schoharie County and to assume that the work would not have had to have been duplicated in connection with pursuit of claims against the County's co-defendants. Plaintiff makes a compelling argument that because of the chronology of the relevant events and the fact that even while confined at the Schoharie County prison he remained in the custody of Schenectady County, the events which occurred at Schoharie were relevant, and the labor expended in fleshing out those occurrences was essential, to all of his claims, including those on which he prevailed. Accordingly, in lieu of attempting to eliminate hours expended solely in pursuit of claims against Schoharie County from the lodestar calculation, I recommend there be a 20% reduction in the amount sought by the plaintiff to account for the lack of success against that defendant. See Green v. Torres, 361 F.3d 96, 99-100 (2d Cir. 2004).
Having reviewed the matter carefully in light of this court's experience with the case, I conclude that with this downward adjustment of 20%, the resulting award is congruent with the result achieved, and is fair to all parties. By all accounts the litigation was hotly contested, and defendants exercised their right to vigorously defend in the action. Under these circumstances they should not now be heard to claim that as a result of that tactical decision plaintiff's counsel was required to expend time and effort for which he should not be fully compensated despite his success in the action.
5. Apportionment
Defendants have also proposed apportionment of any attorneys' fee award between Schenectady County and the EMSA defendants. Because the judgment ultimately entered was joint and several, and did not apportion liability, I see no basis for the court to review the record and engage in surmise concerning relative culpability and to allocate attorneys' fees recoverable as against these two defendant groups.
F. Costs
An award of attorneys' fees such as that authorized under 42 U.S.C. § 1988 customarily includes "those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." United States Football League v. National Football League, 887 F.2d 408, 416 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 110 S. Ct. 1116 (1990); see also Patterson, 250 F. Supp.2d at 47-48 (citing, inter alia, USFL). That section does not, however, permit a prevailing party's counsel to recover unexceptional, incidental overhead expenses. LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998). "Whether a particular item constitutes ordinary overhead or an awardable cost depends on whether the item is one normally absorbed within the attorney's fee or separately charged to a client." Arbor Hill, 2005 WL 670307, at *12 (citing LeBlanc-Sternberg, 143 F.3d at 763). Typical of expenses which are generally allowed as reimbursable costs are travel expenses, postage, the costs of placing telephone calls, and photocopying charges. See Amato, 991 F. Supp. at 68.
In his application, plaintiff seeks recovery of a total of $11,984.49 in costs. That amount is comprised principally of service fees, court reporter expenses, on-line legal research costs, postage, photocopying charges, and travel expenses. The Schenectady County and EMSA defendants have not specifically objected to plaintiff's application for costs.
In its submission to the court defendant Schoharie County did oppose plaintiff's request for costs on several bases. Although Schoharie County is no longer subject to a fee award, in view of Judge Walter's post-trial ruling, I have nonetheless considered the arguments raised by that defendant in opposition to plaintiff's application for recovery of costs.
For the most part, I recommend approval of plaintiff's request for costs as consistent with established caselaw and this court's practice in reviewing such requests. I find, however, the total of $5606.60 claimed for arranging for service of process, principally through amounts invoiced by and paid to Lightening Legal Services, to be both grossly excessive and inadequately explained. I therefore recommend that the portion of the disbursement request related to service fees be cut by 90%. Similarly, I recommend rejection of the request for recovery of expert witness fees, since section 1988 limits recovery of such expenditures to actions brought under 42 U.S.C. §§ 1981 and 1981(a). 42 U.S.C. § 1988(c); see Padro v. Commonwealth of Puerto Rico, 100 F.Supp.2d 99, 109 (D.P.R. 2000), aff'd as modified, 247 F.3d 288 (1st Cir. 2001). I therefore recommend that a total amount of costs be awarded as follows:
Description Amount
Service Fees $560.66 Private Investigation Fees $150.38 Photocopying $508.98 Postage and Federal Express Charges $153.47 Travel Expense $115.54 Court Reporter Fees $1,983.44 Filing Fee $150.00 Long Distance Charges $468.26 Computerized Research $1,306.28 Witness Fees $41.54
TOTAL: $5,438.55
IV. SUMMARY AND RECOMMENDATION
Utilizing the methodology accepted by the courts, including this circuit, I find that the appropriate lodestar amount in this case is $172,920. Applying a 20% reduction, based upon various factors including the lack of his success against Schoharie County, I conclude that a fee award of $138,336 is justified, and that such an award is both reasonable and consonant with comparable awards from this and other districts. I also find that plaintiff has demonstrated his entitlement to award of costs in the further amount of $5,438.55. It is therefore
RECOMMENDED that plaintiff's application for an award of costs and attorneys' fees be granted, in part, and that he be awarded a total of $143,774.55 in costs and attorneys' fees in the action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is further ORDERED that the Clerk of the Court serve a copy of this report and recommendation upon the parties electronically.