Opinion
6:13-CV-783
07-06-2016
CHRISTOPHER STEVENS, Plaintiff, v. RITE AID CORPORATION d/b/a RITE AID PHARMACY, a/k/a ECKERD CORPORATION d/b/a RITE AID, Defendant.
DECISION and ORDER
I. INTRODUCTION
Before the Court is Plaintiff's motion for an order awarding Plaintiff $560,636.50 in attorneys' fees and $48,367.95 in costs. Dkt. # 150. Defendant opposes the motion, dkt. # 153, and Plaintiff has filed a reply. Dkt. # 156.
For the reasons that follow, the Court awards Plaintiff $393,445.55 in attorneys' fees and $48,367.95 in costs.
II. BACKGROUND
Plaintiff Christopher Stevens worked as a pharmacist for the Rite Aid company until he was discharged in August 2011. This case arises from Rite Aid's requirement that its pharmacists administer injections for immunizations, and Mr. Stevens' contention that he could not do this because he suffers from trypanophobia, also called needle phobia. Plaintiff brought claims under the Americans with Disabilities Act ("ADA"), and the New York State Human Rights Law ("NYSHRL" or "Human Rights Law"). He alleged that Rite Aid violated the ADA and the Human Rights Law by (1) discharging him because of his disability; (2) failing to provide him a "reasonable accommodation" for his disability; and (3) retaliating against him because he exercised his rights under the ADA and the Human Rights Law.
Following an eight (8) day trial, a jury found that Plaintiff proved that: (1) he was discharged because of a disability in violation of the ADA; (2) Rite Aid failed to provide a reasonable accommodation in violation of the ADA; (3) he was retaliated against in violation of the ADA; (4) he was discharged because of a disability in violation of the NYSHRL; (5) Rite Aid failed to provide a reasonable accommodation in violation of the NYSHRL; and (6) he was retaliated against in violation of the NYSHRL. The jury awarded Plaintiff $485,633.00 in back-pay damages; $1,227,188.00 in front-pay damages (encompassing 4.75 years from the date of the verdict, i.e., January 22, 2015); and $900,000.00 in compensatory damages.
After trial, the Court granted in part Defendant's motion for judgment as a matter of law, dismissing Plaintiff's ADA failure to accommodate claim, and denied the motion in all other respects. The Court also granted Defendant's motion for a new trial unless Plaintiff accepted a remittitur of the compensatory damages award to $125,000.00, which Plaintiff subsequently accepted. In addition, the Court granted Plaintiff's motion to amend the judgment to assess pre-judgment interest on the back-pay award and post-judgment interest.
The substantive merits of the case are presently on appeal before the United States Court of Appeals for the Second Circuit. See Stevens v. Rite Aid Corp., (2d Cir.), Docket # 15-277 (lead), #15-279, and #15-3491. The only issue remaining before this court is Plaintiff's motion for attorneys' fees and costs. Dkt. # 150.
III. DISCUSSION
a. Timeliness of Motion
Defendant argues that Plaintiff's motion is premature because of the pending appeal, asserting that it remains an open question whether Plaintiff is a prevailing party and/or that a subsequent fee application may be required if the case is remanded for any reason. Plaintiff argues that the matter should be decided now.
A district court retains jurisdiction over a plaintiff's application for attorneys' fees even after a notice of appeal has been filed. Gill v. Bausch & Lomh Supplemental Ret. Income Plan I, 2014 WL 1404902, at * 1 (W.D.N.Y. April 10, 2014); see Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 225 (2d Cir. 2004) ("[N]otwithstanding a pending appeal, a district court retains residual jurisdiction over collateral matters, including claims for attorneys' fees.") (citations omitted). In such circumstances, the Court has the discretion to decide the motion immediately or defer doing so until the appeal is concluded. Gill, 2014 WL 1404902, at *1; see Mhany Mgmt. Inc. v. Vill. of Garden City, 44 F. Supp. 3d 283, 285-86 (E.D.N.Y. 2014) (noting that the district court has the discretion to defer ruling on the prevailing party's motion for attorney's fees, not that it is required to do so). The Court may also "deny the motion without prejudice directing under subdivision (d)(2)(B) of Rule 54 a new period for filing after the appeal has been resolved." Fed. R. Civ. P. 54(d), 1993 Adv. Com. Notes.
A review of the Second Circuit docket indicates that briefing is still being performed. That being the case, the Court elects to exercise its discretion and decide the matter on the current record. See Lake v. Schoharie County Commissioner of Social Services, 2006 WL 1891141, at *3, n.2 (N.D.N.Y. May 16, 2006).
As Magistrate Judge Peebles wrote in Lake:
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 plaintiffs 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.2006 WL 1891141, at *3, n.2.
b. Fee Calculation
"The ADA provides that a district court 'in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs.'" Parker v. Sony Pictures Entm't, Inc., 260 F.3d 100, 111 (2d Cir. 2001)(quoting 42 U.S.C. § 12205). "This language is nearly identical to the analogous provision governing attorney's fees in employment discrimination cases litigated under Title VII of the Civil Rights Act of 1964, . . . and we apply the same standard as under Title VII." Id. A prevailing party is a party who "obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought." Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health & Human Res., 532 U.S. 598, 602 (2001). Plaintiff is clearly a prevailing party in this action.
Once a party proves he is the "prevailing party," he must then prove that his requested fee is reasonable. Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996); see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). When calculating a reasonable fee, the Court relies on the "presumptively reasonable fee" test derived from the "lodestar" calculation. Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009). The presumptively reasonable fee test requires courts to "determin[e] the reasonable hourly rate for each attorney and the reasonable number of hours expended, and multipl[y] the two figures together to obtain a presumptively reasonable fee award." Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 141 (2d Cir. 2007) (citations omitted). The operative term is "reasonable." In making such a determination, "the district court does not play the role of an uniformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties." Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998)(citation omitted).
Courts also have wide discretion to adjust the fees upward or downward depending on the circumstances. Hensley, 461 U.S. at 434. While the lodestar is the "most useful starting point" in determining a reasonable fee, it may be adjusted by considering a variety of other factors. Hensley, 461 U.S. at 433.
The twelve factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the 'undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Hensley, 461 U.S. at 430 n. 3.
Some of these factors, however, may have already been considered in the initial lodestar determination. Hensley, 461 U.S. at 434 n. 9
Thus, despite that there exists "a 'strong presumption' that the lodestar represents the 'reasonable' fee," City of Burlington v. Dague, 505 U.S. 557, 561 (1992)(citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)), adjustments may be made to the lodestar figure provided the party seeking such an adjustment meets its burden of establishing the reasonableness of the adjustment. See id. (citing Blum v. Stenson, 465 U.S. 886, 898(1984)).
1. Reasonable Hourly Rate
In considering the reasonableness of the hourly rate requested by the prevailing party, the Court is presumed to "use [] the hourly rates employed by the district in which the reviewing court sits." Arbor Hill Concerned Citizens, 493 F.3d at 120 (citing In re Agent Orange Products Liability Litigation, 818 F.2d 226, 232 (2d Cir. 1987)).
The reasonable hourly rate should be what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively. This Circuit's "forum rule" generally requires use of the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee. Fees should not be awarded at higher out-of-district rates unless a reasonable client would have selected out-of-district counsel because doing so would likely produce a substantially better net result.Bergerson v. New York State Office of Mental Health, 652 F.3d 277, 289-90 (2d Cir. 2011)(internal citations and quotation marks omitted).
"Recent cases in the Northern District have upheld hourly rates between $250 and $345 for partners; between $165 and $200 for associates; and between $80 and $90 for paralegals." Berkshire Bank v. Tedeschi, 2015 WL 235848, at *3 (N.D.N.Y. Jan. 16, 2015). Despite these spans, "[c]ourts in this District consistently deem $300 to be an reasonable hourly rate for an experienced partner." Seidenfuss v. Diversified Adjustment Servs., Inc., 2016 WL 1047383, at *2 (N.D.N.Y. Mar. 15, 2016)(finding $300 per hour to be a reasonable hourly rate for an attorney who "has forty-two years of legal experience, along with more than twenty-five years representing clients in [similar matters.]")(citing Jimico Enters., Inc. v. Lehigh Gas Corp., 2014 U.S. Dist. LEXIS 38930, at *6, 2014 WL 1239030 (N.D.N.Y. Mar. 25, 2014). Moreover, Northern District courts have found $210 to $275 an hour to be a reasonable rate for less experienced partners, see Curves Int'l, Inc. v. Nash, 2013 U.S. Dist. LEXIS 104095, at *5, 2013 WL 3872832 (N.D.N.Y. July 25, 2013)(finding $275 per hour for a partner reasonable); Tedeschi, 2015 U.S. Dist. LEXIS 5349, at *3 (finding $250 for a partner to be a reasonable hourly rate); Dotson v. City of Syracuse, 2011 WL 817499, at *28 (N.D.N.Y. March 3, 2011)(awarding $210 an hour in employment discrimination case, citing several cases for the same proposition), and $180 - $200 an hour to be reasonable for associate level work. See Nash, 2013 U.S. Dist. LEXIS 104095, at *5 (finding $200 per hour for an associate reasonable); Jimico Enters., Inc., 2014 U.S. Dist. LEXIS 38930, at *6 (awarding $180 "for associate level work"); Deferio v. Bd. of Tr. of State Univ. of N.Y., 2014 U.S. Dist. LEXIS 9417, at *7 (N.D.N.Y. Jan. 27, 2014)(finding that $200 per hour was a reasonable rate for an attorney with five years of experience); see also Broad. Music, Inc. v. DFK Entm't, LLC, 2012 U.S. Dist. LEXIS 35089, at *7 (N.D.N.Y. Mar. 15, 2012)(finding that $270 for partners and $165 for associates were reasonable hourly rates); Buckley v. Slocum Dickson Med. Grp., PLLC, 111 F. Supp. 3d 218, 225 (N.D.N.Y. 2015) (finding that $225 was a reasonable hourly rate for an experienced attorney). Travel time is usually compensated at a rate of one half the hourly legal fee rate. Dotson, 2011 WL 817499, at *28.
2. Reasonable Hours
The fee applicant also bears the burden of documenting the hours spent by counsel, and the reasonableness thereof. ACE Ltd. v. CIGNA Corp., 2001 WL 1286247, at *2 (S.D.N.Y. Oct 22, 2001). "The 'reasonableness' of an attorney fee request is dependent, in part, on the amount in controversy and the difficulty of the factual and legal issues involved." Gillberg v. Shea, 1996 WL 406682, at *5 (S.D.N.Y. May 31, 1996)(citing N.A.S. Import, Corp. v. Clenson Enter., Inc., 968 F.2d 250, 254 (2d Cir. 1992)). Further, "[i]f the court determines that certain claimed hours are 'excessive, redundant, or otherwise unnecessary,' the court should exclude those hours in its calculation of the lodestar." Gierlinger, 160 F.3d at 876 (quoting Hensley, 461 U.S. at 434). "[A] district court can exclude excessive and unreasonable hours from its fee computation by making an across-the-board reduction in the amount of hours." Luciano v. Olsten Corp. 109 F.3d 111, 117 (2d Cir. 1997). Thus, a fee request can be reduced as excessive where, for example, the fee applicant seeks reimbursement for several attorneys' work on the same or similar tasks. See Lochren v. County of Suffolk, 344 Fed. Appx. 706, 709 (2d Cir. 2009)(finding that district court did not abuse its discretion in applying "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."); ACE Ltd. v. CIGNA Corp., 2001 WL 1286247, at *2 (S.D.N.Y. Oct 22, 2001); General Electric Co. v. Compagnie Euralair, S.A., 1997 WL 397627 at *4 (S.D.N.Y. July 3, 1997)("It is well-recognized that when more lawyers than are necessary are assigned to a case, the level of duplication of efforts increases."); Gillberg, 1996 WL 406682, at *5 ("Obviously, more lawyers leads to more 'conference' time as well as to a certain amount of repetition or 'learning curve' billing which should not be compensable.").
Also,
[w]here descriptions of work done are vague and ambiguous, the Court cannot assess the reasonableness of the entries. Thus, the fees for such work can be eliminated or reduced. "[M]ere characterization of the type of work done, without specifying the purpose and specific subject matter of the task", are insufficient. Descriptions of work such as "review of file", "review of documents" and "review of letters" are vague and do not permit a court to evaluate the reasonableness of the services.Dodson, at *24 (internal citations omitted); see also Thomas v. U.S., 2011 WL 6057898, at * 7 (S.D.N.Y. Dec. 5, 2011)("While the use of block billing does not automatically compel an across-the board reduction, the difficulty created by [the] use of block billing . . . warrants such a reduction.").
3. Analysis
The fee application contains billing entries for fifteen (15) different attorneys (partners and associates) billed at rates from $140 to $350 an hour; for six (6) different paralegal staff members billed at rates from $125 to $130 an hour; and for one (1) law student billed at the rate of $160 an hour. Plaintiff asserts that "[t]he fees requested in this case, which range from $235 to $350 per hour for partners and $140 to $200 per hour for associates, are squarely in line with prevailing reasonable rates in this district." Pl. MOL, p. 7. Defendant responds: "Defendant Rite Aid does not dispute the hourly rate, as laid out in plaintiff's Memorandum, as acceptable within the district. [P]laintiff's attorneys have been professional litigants throughout the course of this case, and defendant Rite Aid does not deny that their expertise commanded counsels' respective hourly rates." Def. MOL. p. 5. Based upon this concession, the Court w ill accept the hourly billing rate for the attorneys that worked on the case for non-travel hours, but will award attorney travel time at one-half the attorneys' hourly rates. The Court also finds a rate of $80 an hour reasonable for both the paralegal staff and the law student's time.
Turning to the reasonableness of the hours expended, the Court notes that Plaintiff seeks to be reimbursed for more than $560,000.00 in legal expenses in the prosecution of a civil action that took eight days to try and which, at least for some of Plaintiff's counsel who seem to deal extensively in this area of law, see Pl. MOL. p. 2, 3-6, did not involve overly complex issues. While the issue of whether trypanophibia is a qualifying disability under the ADA or the NYSHRL was a novel legal issue, the remainder of the case presented relatively common legal and factual matters for attorneys familiar with the application of the ADA and the NYSHRL. As Defendant argues, "Plaintiff's attorneys claim to specialize in discrimination cases arising under the ADA, as well as the New York State Human Rights Law. As such, one would assume it would not require considerable time and effort to set forth the proper ADA framework in opposing a Motion for Summary Judgment. Additionally, . . . the only unique issue in this particular case dealt with trypanophobia, and whether it qualified as a disability under the ADA and/or the Human Rights Law. . . . '[While] there was no case law in relation to same, and 'while this dearth of authority may have made it more important for counsel to research the legislative and regulatory history of the pertinent provisions [of which plaintiffs counsel in this case purports to be well versed] on balance it would seem to have required less overall research time than a case in which counsel is faced with a mountain of case law to sift through.'" Def. MOL, pp. 6-7 (quoting Anderson v. Rochester-Genesee Reg'I. Transp. Auth., 388 F.Supp. 2d 159, 165 (W.D.N.Y. Sept. 20, 2005); see also Critchlow v. First UNUM Life Ins. Co. of Am., 377 F. Supp. 2d 337 (W.D.N.Y. July 14, 2005) (wherein 37 hours of research writing an appellate brief was deemed excessive considering the relative scarcity of cases involving the issue at hand). The total billable hours of legal research prior to trial appears to be 123 hours, which the Court finds to be excessive in light of the relatively few unique issues and little case law bearing on the issue at hand.
("Mr. Stevens first retained Hancock Estabrook, LLP to represent him in this matter in November 2011. At the time, Michael J. Sciotti was the lead attorney and he was primarily assisted by attorneys Robert J. Thorpe and Robert C. Whitaker Jr., both of whom were associates at the time. Mr. Sciotti is the former Chair of the Firm's Labor & Employment practice group with over 24 years' experience litigating employment discrimination cases in state and federal courts.")
("In January 2014, Mr. Sciotti began working for another law firm and attorney Daniel Berman took over as lead counsel on the matter. . . . During the trial Mr. Stevens was represented by attorneys Mr. Berman, Mr. Thorpe and Mr. Whitaker. . . . As set forth in Mr. Berman's declaration, Plaintiffs counsel litigated this case from its inception at the EEOC through jury verdict and beyond. The firm utilized the resources of its attorneys who specialize in employment law as well as its litigators to ensure Mr. Stevens the best representation. . . . Mr. Whitaker, who specializes in employment law litigation, was added to the trial team.")
Some entries are difficult to decipher due to the use of block billing, discussed infra.
The Court also finds it unreasonable to utilize multiple attorneys for routine tasks such as overseeing the production of discovery materials and preparing for depositions, and to bill at the full rate for the time of the attorneys and paralegals who engaged in inter-office conferences and emails with each other. See Castelluccio v. IBM, 2014 U.S. Dist. LEXIS 10057, at *21 (D. Conn. July 23, 2014)(finding it reasonable to utilizing two or more attorneys on tasks when, "whenever possible, [plaintiff] was either not billed or billed at a reduced rate when more than one attorney attended a deposition, and that two partners were never present at any court preceding [sic], including trial."). Experienced counsel should have needed only a fraction of the time billed to complete the necessary tasks to bring this case through trial and post-trial motions. Counsel have also engaged in what appears to be block billing, making it difficult if not impossible for the Court to assess the reasonableness of much of the time claimed to have been expended in counsel's 173 pages of billing statements. See Berman Decl., Ex. 1-3. The Court also finds it unreasonable to utilize two partners and one associate - each billed at their full hourly rates - during the entirety of the trial.
By way of example, on March 4, 2014, Attorney Whitaker billed .3 hours for "conferr[ing] with attorney Robert Thorpe re: depositions and Supplemental Discovery Production" and, the next entry, as part of a block billing entry, Attorney Thorpe billed for the same intra-office discussion. Similarly, on March 13, 2014, Attorney Whitaker billed for "conferr[ing] with attorneys Robert Thorpe and Dan Berman re: defendant's depositions and issues on Summary Judgment." On the next entry, Attorney Thorpe, again as part of a block billing entry, billed for the same conversation. Still further, on May 13, 2014 there are numerous entries reflecting meetings between Attorneys Berman, Thorpe and Whitaker to prepare for the depositions of Traci Burch and James Wickens of Rite Aid.
While not every entry is of the "block billing" variety, some examples of the many block billing entries follow: 04/07/14 RJT Rate: $190 7.5 hours Total bill: $1,425.00
Drafted Christopher Stevens Mediation Memorandum pursuant to NDNY Local Rule, 83.11-5; Research case law to support the same; conference with Robert Whitaker re: the procedural history of the case, the facts relevant to the Mediation, and a summary of the damages; reviewed and revised the Mediation Memorandum incorporating edits from Robert Whitaker; reviewed Memorandum of Law from Brianna Fundalinski re: 80A case law involving phobias pre- and post-ADA Amendment; reviewed response letter from Keith Raven re: the attorney - client and work - product privileges, briefing conference with Robert Whitaker re: the same.
Defendant notes that "with the exception of the direct examination of one witness and the cross examination of another, Mr. Whitaker, for the most part did not participate in the trial." Def. MOL, p. 10.
What is more problematic for the Court is the sheer excessiveness of the time spent on all of the details of this case. Law firms generally operate with a profit motive where efficiency is the rule demanded in every case. These firms do not have the luxury to address every detail of a case ad infinitum. "The presumptively reasonable fee boils down to 'what a reasonable, paying client would be willing to pay,' given that such a party wishes 'to spend the minimum necessary to litigate the case effectively.'" Simmons, 575 F.3d at 174 (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, 118 (2d Cir. 2007) opinion amended and superseded sub nom. Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany & Albany County Bd. of Elections, 522 F.3d 182 (2d Cir. 2008)). Although Plaintiff's counsel represent that they have excluded from the fee application "time Mr. Berman invested to get 'up to speed' on the case" after Mr. Sciotti began working for another law firm, Pl. MOL, p. 3, and that they "removed over 300 hours of time that although performed in good faith, appeared duplicitous, excessive or represented time spent getting new counsel up to speed on the case," id., p. 7, the Court finds that the total number of hours requested for compensation is excessive.
Defendant requests that Plaintiff's attorneys' fees be reduced by at least 30% with travel time entries reduced by 50%. Def. MOL, p. 19. Based on a careful review of the parties' submissions, the Court's knowledge of the file, motions, trial, and all of the considerations outlined above, the Court will apply an across-the-board reduction of 30% to the total requested fee. This reduction accounts for reduced hourly rates for attorney travel time, and for a reduced hourly rate for paralegal and law student time. Consequently, Plaintiff is entitled to recover attorneys fees in the amount of $393,445.55.
c. Costs
Costs are recoverable under 42 U.S.C. § 12205 as well as Fed. R. Civ. P. 54(d)(1). The term "costs" as used in Rule 54 includes the specific items enumerated in 28 U.S.C. § 1920. Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001) (citations omitted). While costs may be taxed by the Court Clerk, Fed. R. Civ. P. 54(d)(1), "attorney's fees awards [may also] include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." LeBlanc-Sternberg, 143 F.3d at 763 (internal citations and quotations omitted); Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987).
"In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual." 42 U.S.C. § 12205.
"[C]osts--other than attorney's fees--should be allowed to the prevailing party." Fed. R. Civ. P. 54 (d)(1).
Section 1920 provides:
A judge or clerk of any court of the United States may tax as costs the following:28 U.S.C. §1920. --------
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
"[A]n award [of costs] against the losing party is the normal rule obtaining in civil litigation, not an exception." Scully, 241 F.3d at 270. While costs are generally taxed by the Clerk without regard to reasonableness, a district court has authority to review, adjust, or deny an award of costs based on "the sound discretion of the district court." Cosgrove v. Sears, Roebuck, & Co., 191 F.3d 98, 102 (2d Cir.1999) (quotation marks and citation omitted). "[T]he burden is on the prevailing party to establish to the court's satisfaction that the taxation of costs is justified." John and Kathryn G. v. Board of Ed. of Mt. Vernon Public Schools, 891 F. Supp. 122, 123 (S.D.N.Y.1995).
Defendant's objection to Plaintiff's costs is that, although all disbursements relative to the retention of Plaintiff's experts are reflected in Exhibit 2 to the 11/19/2015 Berman Declaration, Dkt. # 150-1, "there is no specification in any of the disbursements for experts as to which fees apply to which experts. Moreover, only three of the expert fee invoices were attached to the plaintiffs moving papers." Def. MOL, p. 17. Defendant asserts that it "is not questioning by any means whether plaintiff's attorneys actually paid the expert fees. Rather, defense counsel has a right to review the invoices, particularly as to what each expert did, to determine whether the fees were, in fact, reasonable." Id. In reply, Plaintiff's counsel attaches the invoices from Plaintiff's experts which were apparently inadvertently omitted from the papers filed in connection with the motion. See 02/16/16 Berman Decl. ¶ 3 & Ex. 1, dkt. # 156-1.
The Court has reviewed the invoices provided by Plaintiff which pertain to the experts that Plaintiff's counsel utilized in prosecution of the instant case. In light of the fact that Plaintiff's experts were utilized relative to each of the claims on which Plaintiff prevailed, the Court finds that Plaintiff has sustained his burden of establishing that the taxation of all sought-after costs are justified. Therefore, costs are taxed to Defendant in the amount of $48,367.95.
III. CONCLUSION
Based upon the reasons set forth above, the Court awards Plaintiff attorneys' fees in the amount of $393,445.55 and costs in the amount of $48,367.95, both to be paid by Defendant. Execution upon the attorneys' fees and costs awarded herein is stayed pending the resolution of the appeals in this matter.
IT IS SO ORDERED.
Dated: July 6, 2016
/s/_________
Thomas J. McAvoy
Senior, U.S. District Judge
11/21/14 RJT Rate: $190 2.5 hour Total bill: $475
Reviewed Rite Aid's reply memorandum and conference with Ross Greenky re: financial research issues; reviewed and revised plaintiffs FRCP 26(a)(3) disclosure; reviewed case law analyzing whether the disability determination under the ADA is a question of law and, fact, or mixed, in conference with Jaime Hunsicker re: additional case law to support plaintiffs position at oral argument; conference with attorneys Daniel Berman and Robert Whitaker re: oral argument and plaintiffs Exhibit List.01/09/15 DBB $350 3.50 1225.00
Prepare for and conduct conference call with Dr. Frank Dattilio in preparation for his trial testimony; review and revise objections to Rite Aid designated testimony; telephone conferences with (3) with Attorney Keith Raven re: withdrawal of Rite Aid objection to Christopher Stevens designation; office conference with Robert C. Whitaker re: cross examination of Rite Aid vocational rehabilitation expert and practice cross-examination of Christopher Stevens01/09/15 RJT $200 5.00 1000.00
Trial preparation; telephone calls with Keith Raven and Ryan Dempsey; exchanged e-mails with all of plaintiff's expert witnesses; drafted letter to Judge McAvoy re: deposition excerpts and exchanged e-mails with Ryan Dempsey re: same; drafted witness outlines; conference call with Dr. Dattilio and Daniel Berman; reviewed background section of Dr. Dattilio's report