Summary
reducing hours in attorneys' fees application because the "substantial amount of block billing in the fee requests here renders it difficult to determine whether, and/or the extent to which the work done by plaintiff's attorneys is duplicative or unnecessary"
Summary of this case from United States ex rel. Tommasino v. GuidaOpinion
CV 07-5249 (TCP)(ARL)
12-19-2012
WAYNE SPENCE, Plaintiff, v. ANTHONY G. ELLIS, II, JOSE BURGOS, and THEODORE A. COOK, Defendants.
REPORT AND RECOMMENDATION
LINDSAY, Magistrate Judge :
Plaintiff Wayne Spence ("plaintiff"), a parole officer of the New York State Division of Parole ("DOP") officer, commenced this action pursuant to 42 U.S.C. § 1983 ("Section 1983") against defendants Anthony G. Ellis, II, Jose Burgos and Theodore A. Cook (collectively "defendants"), alleging that these three DOP supervisors violated his civil rights to free speech and association by retaliating against him for exercising his right to petition the government for redress by the expression of his opinions at a public legislative hearing. On November 28, 2011, defendants served an Offer of Judgment pursuant to Fed. R. Civ. P. 68 on plaintiff in the amount of $50,000.01 in full satisfaction of all his claims against the defendants. (Docket Report Entry No. 72-1.) The Offer of Judgment stated, "This sum does not include attorney's fees, costs and disbursements, which will be determined at a later date by either agreement, or by decision of the court on motion." (Id.) On December 1, 2011, plaintiff accepted the offer. (Docket Report Entry No. 73.) The district court entered the Judgment Pursuant to Rule 68 "with the costs and disbursements accrued, including reasonable attorney's fees in an amount to be determined by the Court" on January 12, 2012 (Docket Report Entry No. 74.) Plaintiff moved for an award of attorney's fees and expenses pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 54, and defendants requested an evidentiary hearing on the motion. This matter was referred to the undersigned by District Judge Platt for the purpose of conducting an evidentiary hearing and issuing a report and recommendation with respect to the amount of reasonable attorney's fees and costs to be awarded to the plaintiff. Based upon the evidence submitted, the undersigned respectfully reports and recommends that plaintiff be awarded $177,108.75 in attorney's fees and $12,317.12 in costs and disbursements for a total amount of $189,425.87.
On February 3, 2012, this case was reassigned from District Judge Leonard D. Wexler to District Judge Thomas C. Platt. (Order, dated February 3, 2012.)
Defendants' request for an evidentiary hearing was withdrawn. (Docket Report Entry No. 85.)
PROCEDURAL BACKGROUND
Familiarity with the facts of the underlying action is presumed. Plaintiff filed the instant action against defendants on December 18, 2007, and filed a First Amended Complaint on December 27, 2007. Plaintiff's First Amended Complaint asserted claims pursuant to Section 1983 (i) for violations of his First Amendment right to petition the government and participate in the legal process and right to associate without retribution, (ii) for violations of the Equal Protection Clause of the Fourteenth Amendment based on selective enforcement and (iii) pursuant to 42 U.S.C. § 1985 for conspiracy. Plaintiff subsequently withdrew his Equal Protection and Section 1985 conspiracy claim. On December 2, 2008, defendants moved pursuant to Fed. R. Civ. P. 12(c) to dismiss in part the plaintiff's First Amended Complaint, and plaintiff cross-moved to file a Second Amended Complaint.
While the motions were pending, plaintiff moved for leave to file a Third Amended Complaint, and defendants cross-moved pursuant to Fed. R. Civ. P. 12(c) to dismiss in part the plaintiff's First Amended Complaint or for judgment in part on claims in plaintiff's proposed Third Amended Complaint. By Memorandum and Order dated October 9, 2009, the district court denied plaintiff's motion for leave to amend the First Amended Complaint to add a Section 1983 conspiracy and substantive due process claims; granted defendants' cross-motion for judgment on the pleadings as to plaintiff's claim in the First Amended Complaint for violation of the First Amendment right of expressive association; and held that plaintiff's remaining claim from the operative complaint, viz. the First Amended Complaint, is for violation of the First Amendment right to petition the government and participate in the legislative process.
On February 23, 2010, defendants moved for summary judgment pursuant to Fed. R. Civ. P. 56. By Memorandum and Order dated September 28, 2010, the district court granted in part and denied in part defendants' motion. Defendants filed a notice of appeal challenging the district court's denial of dismissal based upon qualified immunity. Defendants withdrew their appeal and the case was restored to the district court calendar on June 6, 2011. The case was reassigned to District Judge Wexler, and the case was marked ready for trial with jury selection scheduled on December 12, 2011. Defendants thereafter offered and plaintiff accepted an Offer of Judgment pursuant to Rule 68, and on January 19, 2012, judgment was entered in favor of plaintiff and against defendants in the amount of $50,000.01. The case was again reassigned to District Judge Platt on February 3, 2012.
Plaintiff now moves pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 54 to recover attorney's fees and costs against defendants. Defendants oppose the application.
DISCUSSION
The Supreme Court has recently emphasized that the "determination of fees should not result in a second major litigation. The fee applicant . . . must, of course, submit appropriate documentation to meet the burden of establishing entitlement to an award. But trial courts need not, and indeed should not, become green-eyeshade accountants." Fox v. Vice, 131 S. Ct. 2205, 2216 (2011) (internal quotation marks and citations omitted); see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1982) (holding that "[a] request for attorney's fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of the fee.").
(A) Standard under 42 U.S.C. § 1988
"Under § 1988, when a party succeeds on a § 1983 claim, the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." Kirk v. New York State Dep't of Educ., 644 F.3d 134, 137 (2d Cir. 2011) (internal quotation marks and citation omitted). As a threshold matter, "to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim." Farrar v. Hobby, 506 U.S. 103, 111 (1992); see Kirk, 644 F.3d at 137 ("plaintiffs may be considered prevailing parties for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit") (internal quotation marks and citation omitted). If a plaintiff is determined to be a prevailing party, a "presumption" that he "should recover an attorney's fee [arises] unless special circumstances would render such an award unjust." Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1982) (citations omitted).
The Second Circuit has held that a plaintiff who accepts a Rule 68 offer of judgment qualifies as a prevailing party entitled to attorney's fees and costs. See Lyte v. Sara Lee Corp., 950 F.2d 101, 103-04 (2d Cir. 1991) (finding plaintiff who accepted a Rule 68 offer of judgment in the amount of $9,500 qualified as a "prevailing party" entitled to attorney's fees and costs under Title VII's fee award provision); see also Cruceta v. City of New York, No. 10-CV-5059 (FB)(JO), 2012 WL 2885113, at *1 (E.D.N.Y. Feb. 7, 2012). Having prevailed on his First Amendment claim pursuant to Section 1983 against defendants, and having obtained the entry of judgment against defendants for damages in the amount of $50,000.01 plus costs and disbursements, including attorney's fees, plaintiff qualifies as a prevailing party for the purposes of awarding attorney's fees and costs pursuant to 42 U.S.C. § 1988. Thus, the issue is what fee is "reasonable." Hensley, 461 U.S. at 433.
(B) Reasonable Attorney's Fees
Plaintiff is seeking $320,555.00 in attorney's fees and $13,456.27 in costs and disbursements for a total amount of $334,011.27. Defendants oppose the application asserting that plaintiff is not entitled to any attorney's fees because plaintiff's application does not permit a full and fair analysis of the work performed, but recognize that the court has the discretion to reduce, rather than disallow entirely, the fees requested. Defendants urge that in such a case any fee award be drastically discounted because (i) counsel and the firm's requested hourly rates are not commensurate with their level of experience; (ii) counsel's bills are inflated and overstate the value of their services; (iii) time records include block billing, making it impossible to determine the reasonableness of the time spent in those entries; and (iv) the fees requested are excessive in view of the limited degree of success obtained in this case. Having reviewed plaintiff's motion and the accompanying exhibits, as well as the defendants' opposition papers, the undersigned concludes that plaintiff's counsel is entitled to prevailing party counsel fees, and the court will fashion a reasonable fee based on the submissions which comports with the applicable legal standards governing such an award.
When assessing the reasonableness of legal fees, the court must determine the "presumptively reasonable fee" for an attorney's services by looking to what a reasonable client would be willing to pay, keeping in mind that "a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009). "A reasonable fee is a fee that is sufficient to induce a capable attorney to undertake representation of a meritorious civil rights case." Perdue v. Kenny A. Ex rel Winn, 130 S. Ct. 1662, 1672 (2010). The process of establishing a reasonable fee has been evolving in this Circuit in recent years. The traditional approach has been the "lodestar" method, which determines the "number of hours reasonable expended on the litigation," multiplied by a "reasonable hourly rate." Hensley, 461 U.S. at 433; and see Whitney v. Jet Blue Airways Corp., 2009 WL 4929274, at *2 (E.D.N.Y. Dec 21. 2009) (giving background and history to lodestar approach). In 2007, however, the Second Circuit called for abandoning the term "lodestar" in favor of a "presumptively reasonable fee." See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2007). The presumptively reasonable fee is still determined with the reference to the number of hours reasonably expended on a matter and the reasonable fee to be charged for those hours. Under this approach, the court looks to multiply, case-specific factors to establish a reasonable hourly rate that a "reasonable, paying client would be willing to pay," and then multiplies that rate by the number of hours reasonably spent on the case, to arrive at the presumptively reasonable fee. See id., at 187-190 (listing factors to be considered, including factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).
In April 2010, the Supreme Court issued an opinion endorsing the lodestar method and expressing skepticism about the Johnson approach. See Perdue, 130 S. Ct. at 1672. At least one court has noted that Purdue "appears to cast doubt on the viability of . . . Arbor Hill," which relied in part on the Johnson factors. Allende v. Unitech Design, Inc., 783 F. Supp. 2d 509, 514, n.4 (S.D.N.Y. Mar. 15, 2011). Another court has concluded that, "[w]hatever the terminology," both Arbor Hill and Purdue "require the Court to consider case-specific factors in determining the reasonableness of the hourly rate and the number of hours expended." Brown v. Starrett City Assocs. Inc., 2011 WL 5118438, at *4, n. 5 (E.D.N.Y. Oct. 27, 2011) (citing Shim v. Millennium Group, 2010 WL 2772493, at *2 & n. 3 (E.D.N.Y. June 21, 2010)). It would appear that although use of the Johnson "method" is now proscribed, reference to the Johnson "factors" is still useful in calculating a presumptively reasonable fee in this Circuit. See Shim, 2010 WL 2772493 at *2 & n. 3. Therefore, whether the calculation is referred to as the lodestar or as the presumptively reasonable fee, courts will take into account case-specific factors to help determine the reasonableness of the hourly rates and the number of hours expanded. See Archie Comic Publications, Inc. v. Penders II, No. 10 Civ. 8858 (RMB)(MHD), 2012 WL 3245421, at *1 & n. 3 (S.D.N.Y. Aug. 6, 2012) (observing that "the term 'lodestar' has recently had a somewhat up-and-down fate in the Second Circuit. After years of usage of this term, the Second Circuit seemed to banish it in the series of Arbor Hill opinions, but it has since made a comeback after the Supreme Court utilized it last year [in Purdue] without questioning its appropriateness as a descriptor of the required fee analysis") (citations omitted). And, nothing in Purdue changes the rule that those factors are to be considered within the context of the relevant legal "community," traditionally defined as "the district where the court sits." Arbor Hill, 522 F.2d at 190 (internal citation omitted). Finally, "[t]he burden is on the party seeking attorney's fees to submit sufficient evidence to support the hours worked and the rates claimed." Hugee v. Kimso Apartments, LLC, 852 F. Supp. 2d 281, 291 (E.D.N.Y. 2012).
(1) Hourly Fee
Plaintiff seeks $320,555.00 in attorney's fees, which represents principle time billed at a rate of $425 per hour, associate time billed at a rate of $200 per hour and paralegal time billed at a rate of $125 per hour. In support of the application, plaintiff submitted contemporaneous time records detailing the tasks the attorneys completed for this case and the number of hours expended on each task for the legal services rendered by Meenan & Associates, LLC. The fee charges are as follows: (a) $425 an hour for Colleen M. Meenan, a principle with twenty years experience with a primary focus of practice in civil rights, who billed for 634 hours, (b) $200 an hour for Shelley-Ann Quilty, an associate with over two and one half years experience, who billed for 158.9 hours and (c) $125 an hour for Gaitree Bhoge, a paralegal, who billed for 108.9 hours. (Meenan Decl., dated January 26, 2012, ¶¶ 4-18, 31; Meenan Supplemental Decl., May 30, 2012, ¶¶ 5-10.) Defendants correctly note that these rates exceed those typically awarded in the Eastern District of New York for similar cases. Defendants also correctly note and plaintiff agrees that travel time should be awarded at 50%.
Although plaintiff, who was represented by a Manhattan-based firm, initially sought out-of-district rates for Colleen M. Meenan, plaintiff has withdrawn this request. (Meenan Supplemental Decl., dated May 30, 2012, ¶ 6.)
The undersigned must determine the reasonable hourly rate by reference to the "prevailing market rates in the relevant community," Perdue, 130 S. Ct. at 1672 (internal quotation marks and citation omitted), "for similar services by lawyers of reasonably comparable skill, experience, and reputation" Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984). "The relevant community to which the court should look is the district in which the case was brought." Rosado v. City of New York, No. 11 Civ. 4285 (SAS), 2012 WL 955510, at *4 (S.D.N.Y. Mar. 15, 2012) (internal quotation marks and citations omitted). "To compensate for the delay in payment, the hourly rates to be used should be current rather than historic rates." Id. (internal quotation marks and citation omitted). Moreover, the court may consider its own experience and familiarity with the case and with prevailing rates in the district. See Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41, 59 (2d Cir. 2012) ("this Court has instructed that determination of a reasonable hourly rate contemplates a case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant's counsel, an inquiry that may include judicial notice of the rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district"); see Fox Indus., Inc. v. Gurovich, No. CV 03-5166 (TCP)(WDW), 2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005) ("Judges should use their experience with the case, as well as their experience with the practice of law, to assess the reasonableness of the hours spent and rates charged in a given case"). Finally, in determining a reasonable hourly rate, courts "should bear in mind that a reasonable paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill, 522 F.3d at 190.
Recent decisions from the Eastern District of New York have approved hourly fee rates in the range of $200 to $450 for partners, $100 to $300 per hour for associates, and $70 to $100 per hour for legal assistants. See Hugee, 852 F. Supp. 2d at 298-99 (internal quotation marks and citations omitted) (collecting cases); see Sacardi v. Green Field Churrascaria, Inc., No. 10 Civ. 5605, 2012 WL 4979195, at *1 (E.D.N.Y. Oct. 17, 2012) (observing that "[o]verall, hourly rates for attorneys approved in recent Eastern District of New York cases have ranged from $200 to $350 for partners, $200 to $250 for senior associates, $100 to $150 for junior associates, and $70 to $80 for legal assistants"); Dowdell v. Imhof, No. 10-CV-1332 (SJF)(ARL), 2012 WL 959474, at *2-3 (E.D.N.Y. Mar. 19, 2012) (observing courts in the Eastern District of New York have found hourly rates between $200 and $375 to be reasonable for partner-level attorneys, rates between $100 and $295 to be reasonable for associate-level attorneys, and rates between $70 and $80 to be reasonable for legal assistants, paralegals and interns, and awarding in a civil rights action an hourly rate of $375 for attorney practicing for 25 years or longer, and hourly rate of $350 for an attorney practicing close to 20 years given their level of experience, and an hourly rate of $150 for a junior associate admitted to the New York bar in 2010) (collecting cases); see also Janus v. Regalis Const., Inc., No. 11-CV-5788 (ARR)(VVP), 2012 WL 3878113, at *12 (E.D.N.Y. July 23, 2012) (observing courts in the Eastern District of New York "typically find that prevailing rates for law firm partners range between $300 and $400," and "[p]revailing rates for paralegals in this district are typically below $125") (collecting cases). The court may consider the size of the firm, "as large firms tend to charge higher hourly rates than small firms." Hugee, 852 F. Supp. 2d at 299 (citation omitted); see Murry ex rel. Murray v. Mills, 354 F. Supp. 2d 231, 236 (E.D.N.Y. 2007) (noting that in order to compensate for higher overhead costs, hourly rates tend to be higher at large firms); see, e.g., Colon v. City of New York, Nos. 09 CV 0008(JBW), 09 CV 0009(JBW), 2012 WL 691544, at *20-21 (E.D.N.Y. Feb. 9, 2012) (finding rates of $300 to $400 per hour for partners considered reasonable in the Eastern District and approving a rate of $350 per hour for "seasoned" solo practitioners with over 20 years of litigation experience). "The highest rates in this district are reserved for expert trial attorneys with extensive experience before the federal bar, who specialize in the practice of civil rights law and are recognized by their peers as leaders and experts in their field." Hugee, 852 F. Supp. 2d at 299 (citation omitted); see Luca v. County of Nassau , 698 F. Supp. 2d 296, 301 (E.D.N.Y. 2010) (concluding that $400 per hour award reasonable rate to partner with over 25 years of experience "specializing in plaintiffs-side civil rights cases" whose "peers recognized him as an authority in his specialty, as evidenced by his numerous teaching and speaking engagements," and who has handled approximately 180 civil rights cases in the Eastern District alone); but see L.I. Head Start Child Dev. Servs., Inc. v. Economic Opportunity Comm'n of Nassau County, Inc., 865 F. Supp. 2d 284, 292 (E.D.N.Y. 2012) (considering counsel's citation to certain district court decisions in the Eastern District which have awarded up to $450 per hour, but stating "[t]his Court does not agree that such an hourly rate is the 'reasonable hourly rate' in the Eastern District, as interpreted by the decisions of the Second Circuit and the Supreme Court").
Based on this precedent, as well as the prevailing hourly rates in this district in other contexts and the court's own experience, the undersigned recommends that the court award fees based on the following hourly rates: (a) $375 for Colleen M. Meenan, (b) $150 for Shelley-Ann Quilty, and (c) $100 for Gaitree Bhoge.
Defendants challenge inconsistencies regarding the rates that plaintiff agreed to pay in his attorney's retainer agreement which is a combination contingent fee and hourly rate arrangement, stating that if successful, plaintiff agreed that he would be billed $375 per hour Colleen M. Meenan, $200 per hour for Shelley Ann Quilty and $125 per hour for Gaitree Bhoge but that in his declaration he agreed to pay Ms. Meenan $425 per hour. The declarations are not inconsistent, as there was an increase in Ms. Meenan's hourly fee from a rate of $375 an hour in 2008 to and $425 an hour in 2012. In any event, "the retainer agreement between plaintiff and her counsel does not alter plaintiff's entitlement to section 1988 fees," Brown v. Starret City Associates, No. 09-CV-3282 (JBW), 2011 WL 5118438, at *7 (E.D.N.Y. Oct. 27, 2011), nor does it alter the court's analysis in determining the presumptively reasonable fee, see Blum, 465 U.S. at 886 n.11 (in considering whether a fee negotiation with a client is relevant in determining a reasonable fee award, the Court observed, "[t]he § 1988 fee determination is made by the court in an entirely different setting; there is no negotiation or even discussion with the prevailing client, as the fee - found to be reasonable by the court- is paid by the losing party").
(2) Total Number of Hours Reasonably Expended
"In calculating the number of reasonable hours, the court looks to its own familiarity with the case and its experience with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties." Clark v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992) (internal quotation marks and citation omitted). The plaintiff must show contemporaneous time records, detailing, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). "If the documentation is inadequate, the court may reduce the award accordingly." Hugee, 852 F. Supp. 2d at 303 (citation omitted). In addition, the court must assess the reasonableness of the time expended and adjust those portions of an invoice that reflect "excessive, redundant or otherwise unnecessary" hours. Hensley, 461 U.S. at 434. "If the court determines that the number of hours expended was excessive, redundant or otherwise unnecessary, the court may make reductions to individual entries, or elect to account for such over-billing in an across-the-board percentage deduction." Manzo v. Sovereign Motor Cars, Ltd, No. 08-CV-1229 (JG)(SMG), 2010 WL 1930237, at *8 (E.D.N.Y. May 11, 2010) (internal quotation marks and citation omitted); see Green v. City of New York., 403 Fed. Appx. 626, 630 (2d Cir. 2010) (authorizing district courts "to make across-the-board percentage cuts in hours as a practical means of trimming fat from a fee application") (internal quotation marks and citation omitted). "Similarly, courts routinely apply across-the-board reductions for vague entries." Colon, 2012 WL 691544, at *21 (citations omitted). "The Court is not, however, required to set forth item-by-item findings concerning what may be countless objections to individual billing items." Regan, 768 F. Supp. 2d at 418.
The court has reviewed the time records submitted by Ms. Meenan and the attorney and support staff at Meenan & Associates, LLC who represented plaintiff over the course of the last five years. Plaintiffs attorneys seek compensation for (a) 634 hours for Colleen M. Meenan, (b) 158.9 hours for Shelley-Ann Quilty, and (c) 108.9 hours for Gaitree Bhoge. (Meenan Decl., dated January 26, 2012, ¶¶ 4-18, 31; Meenan Supplemental Decl., dated May 30, 2012, ¶¶ 5-10.) Plaintiff has submitted (i) the declaration of Colleen M. Meenan dated January 26, 2012 and contemporaneous itemized bills for legal services rendered by plaintiffs' counsel, Meenan & Associates, LLC; (ii) the reply declaration of Colleen M. Meenan dated March 19, 2012 and contemporaneous itemized bills for legal services rendered by plaintiffs' counsel, Meenan & Associates, LLC; and (iii) the supplemental declaration of Colleen M. Meenan dated May 30, 2012 and contemporaneous itemized bills for legal services rendered by plaintiffs' counsel, Meenan & Associates, LLC.
Although the level of detail for most of the entries set forth in the records is sufficient to meet the requisite standard, in determining the reasonableness of the time spent the court finds that the number of hours spent by plaintiff's counsel and support staff to be excessive and in certain instances the billing entries to be vague and exacerbated by block billing. First, a review of the records indicates that the amount of time for which plaintiff seeks reimbursement exceeds what was reasonably necessary to successfully pursue this action. The factual scenario in this civil rights action was fairly straightforward as was the applicable law. Moreover, the largest amount of work was undertaken by Ms. Meenan, the most senior attorney on the team, and given her experience and concomitant elevated hourly rate, the court would expect a greater degree of efficiency, particularly with her motion practice viz. motion to amend to add new causes of action, amplify existing ones and withdrawing others. See, e.g., Difilippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985) (describing 302 hours expended as "grossly excessive" and "facially excessive" for a civil rights action that was pending five years and resolved after a one-day bench trial); Rosado, 2012 WL 955510, at *6 (finding the total number of hours charged by plaintiff's counsel was "excessive for the tasks performed to resolve the litigation and "rather than delve into the minutia of individual time entries as suggested by [defendant]" applied an across-the-board percentage reduction of 15%). Under these circumstances, rather than engage in an entry by entry critique of the time billed, the undersigned will reduce the amount of compensable time by an amount that fairly reflects these considerations.
Defendants argue that plaintiff should not be compensated for unsuccessful claims and motions. Fee awards are not typically reduced because a party has failed to prevail on every contention. See Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (the relevant query is not "whether hindsight vindicates an attorneys' time expenditures, but whether at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures). The determination of whether the hours should be reduced for the unsuccessful claims turns on "the degree to which the meritorious claims are clearly separable from the unsuccessful ones." Thorsen v. County of Nassau, No. CV 03-1022(ARL), 2011 WL 1004862, at *5 (E.D.N.Y. Mar. 17, 2011). Here, the court finds that because the unsuccessful claims involve a common core of facts and legal theories, the hours cannot be clearly divided. Thus, the fees will not be reduced as a result of the unsuccessful claims and motions.
For example, the billing records reflect that Ms. Meenan (i) expended 28.6 hours in connection with defendants' motion to dismiss and plaintiff's cross motion to amend and/or "amplify" his claims, and (ii) expended 56.2 hours in connection with plaintiff's motion to serve a third amended complaint. (Meenan Decl., dated January 26, 2012, Ex. E, Entry Nos. 120-21, 123-25, 128-29, 133-34, 140-46, 149-53, 159, 162-65, 175-76, 180-82, 186-88, 200, 203, 235-38, 241-48, 252-54, 259, 290, 297, 323, 333-39, 342, 344, and 349.) --------
In addition, there are block-billed entries in the billing statements. Block billing, that is the "lumping together of discrete tasks . . . makes it difficult for the court to allocate time to individual activities in order to engage the reasonableness of the time expended on each activity." Penberg, 2011 WL 1100103, at *9. "While not prohibited, block billing has a tendency to obfuscate the amount of time expended on distinct tasks and introduces an element of vagueness into a fee application, making it difficult to determine if the reported hours are duplicative or unnecessary." Association of Holocaust Victims for Restitution of Artwork and Materpieces v. Bank Austria Creditanstalt AG, No. 04 Civ. 3600 (SWK), 2005 WL 3099592, at *7 (S.D.N.Y. Nov. 17, 2005) (internal quotation marks and citations omitted). When billing records reflect repeated use of block billing, "courts have used percentage reductions as a practical means of trimming fat from a fee application." Id. (internal quotation marks and citation omitted). Here, the total number of hours attributable to block entry billing as follows: (a) 114 hours for Colleen M. Meenhan, (b) 111.3 hours for Shelly-Ann Quilty, and (c) 5.2 hours for Gaitree Bhoge. (See Meenan Decl., dated January 26, 2012, Ex. E, Entries for 10/19/07, 11/02/07, 11/02/07, 11/03/07, 11/04/07, 12/20/07, 1/22/08, 6/18/08, 10/02/08, 1/07/09, 2/02/09, 2/12/09, 2/17/09, 3/20/09, 4/16/09, 5/05/09, 1/14/10, 1/14/10, 1/15/10, 1/18/10, 1/18/10, 1/19/10, 1/19/10, 1/20/10, 1/20/10, 1/20/10, 1/21/10, 1/21/10, 1/21/10, 1/22/10, 1/23/10, 1/25/10, 1/26/10, 1/27/10, 1/03/11, 1/09/12, 1/22/12, and 1/23/12.) The substantial amount of block billing in the fee requests here renders it difficult to determine whether, and/or the extent to which the work done by plaintiff's attorneys is duplicative or unnecessary, and the court will reduce the billing hours accordingly. See, e.g., Sea Spray Holdings, Ltd., 277 F. Supp. 2d at 326 (reducing by 15% the lodestar figure for block billing and excessive time entries); see also Pilitz v. Incorporated Village of Freeport, No. CV 0-4078 (ETB), 2011 WL 5825138, at *6 (E.D.N.Y. Nov. 17, 2011) (reducing by 5% the lodestar figure to account for certain entries that were block-bill but "where the great majority of the entries in the billing records [we]re not block-billed").
Finally, the hours for which compensation is awarded must be reduced due to the vagueness of certain of the time entries. See, e.g., Kirsch v. Fleet St., Ltd., 148 F.3d 149, 172-73 (2d Cir. 1998) (upholding 20% reduction in billed time for vagueness and other deficiencies where many time entries merely read "letter to court," "staff conference," and "work on motion"); United States Football League v. Nat'l Football League, 887 F.2d 408, 415 (2d Cir. 1989) (approving a 10% reduction of total fee award to account for vagueness in documentation of certain time entries); Colon, 2012 WL 691544, at *21 (noting "courts routinely apply across-the-board reductions to vague entries"); see also Penberg, 2011 WL 1100103, at *9 (reducing billed hours by 25% to account for vagueness and block-billing).
In summary, taking into account the above considerations and in order to account for the instances of excess, block billing and vagueness, the court will exercise its discretion and reduce the number of overall hours for plaintiff's counsel and staff by 35%. See New York State Ass'n of Retarded Children, 711 F.2d at 1146 (noting that courts have "endorsed percentage cuts as a practical means of trimming fat from a fee application"); see also Lochren, 344 Fed. Appx. at 709 (finding no abuse of discretion where "district court applied a 25% across-the-board reduction in fees because plaintiffs overstaffed the case, resulting in the needless duplication of work and retention of unnecessary personnel"); Concrete Flotation Sys., Inc. v. Tadco Const. Corp., No. 07-CV-319(ARR)(VVP), 2010 WL 2539771, at *8 (reducing the compensable hours for each category of professionals by 25% in a breach of contract case in order to account for excessive or duplicative hours billed by 14 different legal personnel). As such, the reasonable amounts incurred by Meenan & Associates, LLC for legal services rendered are as follows:
| Attorneys | Rates | Hours | Subtotal |
|---|---|---|---|
| Colleen M. Meenan | $375 | 634.0 | $237,750.00 |
| Shelly-Ann Quilty | $150 | 158.9 | $ 23,835.00 |
| Gaitree Bhoge | $100 | 108.9 | $ 10,890.00 |
| Sub-total | $272,475.00 | ||
| Less 35% reduction | $ 95,366.25 | ||
| Total: | $177,108.75 |
Thus, the court respectfully reports and recommends an award of attorneys' fees in the amount of $177,108.75.
(C) Attorneys' Costs and Disbursements
Plaintiff also seeks costs and disbursements in the amount of $13,712.59 for the relevant time period. "Attorney's fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." Field Day, LLC v. County of Suffolk, No. CV 04-2203 (DRH)(ETB), 2010 WL 5491025, at *8 (E.D.N.Y. Sept. 9, 2010) (internal quotation marks and citations omitted); see Larson v. JBC Legal Group, P.C., 588 F. Supp. 2d 360, 365 (E.D.N.Y. 2008) ("Attorneys may be compensated for reasonable out-of- pocket expenses incurred and customarily charged to their clients, as long as they were incidental and necessary to the representation of those clients') (internal quotation marks and citations omitted). Court filing fees, process servers, printing and photocopying, messenger services, postage, telephone costs, transcripts, travel, transportation, meals and other "[o]ut of pocket litigation costs are generally recoverable if they are necessary for the representation of the client." AW Indus., Inc. v. Sleep Well Mattress, Inc., No. 07-CV-3969 (SLT) (JMA), 2009 WL 485186 at *6 (E.D.N.Y. Feb. 26, 2009) (internal quotation marks and citation omitted); Manzo, 2010 WL 1930237, at *10. Likewise, expenditures for process servers, subpoenas, and witness fees, see Thorsen v. County of Nassau, No. CV 03-102, 2011 WL 1004862, at *6 (E.D.N.Y. Mar. 17, 2011), as well as for deposition services and deposition/hearing transcripts are recoverable, see Levy v. Powell, No. 00-4499(SJF), 2005 WL 1719972, at *12 (E.D.N.Y. July 22, 2005). However, expenses which are associated with the attorneys' routine office overhead are not recoverable. See id.; 2011 WL 1004862, at *6; Manzo, 2010 WL 1930237, at *11 (holding expenditure for trial binders, exhibits and supplies are non-compensable general office overhead); see also Pennacchio, 2011 WL 2945825, at *2 (same). "The fee applicant bears the burden of adequately documenting and itemizing the costs requested." Pennacchio, 2011 WL 2945825, at *3.
Plaintiff has submitted detailed records of court filing fees, process service fees, transcript fees, subpoena witness and mileage fees, UPS overnight service fees, and printing/copying costs, all of which are routinely recoverable as costs. (Meenan Decl., dated January 26, 2012, Ex. L.) However, the court excludes from plaintiff's requests: (i) expenses in the amount of $760.00 in "co-payments to Dr. Cattano to date (19 sessions)" and "co-payments to Dr. Herman to date (19 sessions)", plaintiff's treating psychologists, as these are not recoverable as costs but are part of plaintiff's out of pocket damages, cf. United States v. Stein, 452 F. Supp. 2d 276, 280 (S.D.N.Y. 2006) (noting co-payments are recoverable as part of the damages out-of-pocket expenses); Anderson v. City of New York, 132 F. Supp. 2d 239, 247 (S.D.N.Y. 2001) (concluding medical expenses "are properly the subject of claims for damages, not costs," and stating that "[p]laintiffs may not relitigate their damages claims in the guise of a motion for costs"); (ii) expenses in the amount of $135.47 for "JCAD (service of subpoenas), as the invoice does not refer to plaintiff but rather refers to two medical providers viz. Dr. Levitin and North Shore Hospital, both of whom are not referred to in the joint pretrial order or in plaintiff's deposition and appears to be unrelated to the instant action, cf. Hofler v. Family of Woodstock, Inc., No. 1:07-CV-1055, 2012 WL 527668, at *7 (N.D.N.Y. Feb. 17, 2012) ("costs are not allowed if they cannot be attached to the advancement of a specific claim"); and (iii) expenses in the amount of $500.00 for "Michael Meenan (witness interviews/statements)," as the only supporting documentation for this expense is a check with the notation "Spence,"cf Carrasco v. West Village Ritz Corp., No. 11 Civ. 7843 (DLC)(AJP), 2012 WL 2814112, at *7 (S.D.N.Y. July 11, 2012) (no recovery of costs incurred for service "in the absence of supporting documentation"); Janus v. Regalis Const., Inc., No. 11-CV-5788 (ARR)(VVP), 2012 WL 3878113, at *13 (E.D.N.Y. July 23, 2012) (declining to award costs where plaintiff provides no explanation or support for the fee). Accordingly, the undersigned respectfully reports and recommends that plaintiff be awarded costs in the amount of $12,317.12.
OBJECTIONS
A copy of this Report and Recommendation is being electronically filed on the date below. Any objections to this Report and Recommendation must be filed with the Clerk of the Court with a courtesy copy to the undersigned within 14 days of service. Failure to file objections within this period waives the right to appeal the District Court's Order. See 28 U.S.C. §636(b)(1); FED. R. CIV. P. 72; Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996). Dated: Central Islip, New York
December 19, 2012
/s/_________
ARLENE R. LINDSAY
United States Magistrate Judge