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relying on 2004 National Law Journal billing survey
Summary of this case from CITIZENS INSURANCE CO. OF AMERICA v. KIC CHEMICALSOpinion
No. 76 Civ. 2125 (RWS).
March 31, 2005
ALAN LEVINE, ESQ., New York, NY, PUERTO RICAN LEGAL DEFENSE EDUCATION FUND, INC., New York, NY, By: FOSTER MAER, ESQ., Of Counsel, Attorneys for Plaintiff.
RICARDO ELIAS MORALES, ESQ., General Counsel, NEW YORK CITY HOUSING AUTHORITY, New York, NY, By: GARY NESTER, ESQ., NANCY M. HARNETT, ESQ., CORINA L. LESKE, ESQ., ELISSA M. KRELL, ESQ., Of Counsel, Attorneys for Defendants.
OPINION
The Williamsburg Fair Housing Committee et al. (the "Plaintiffs") have moved for an award of attorneys' fees and expenses in this class action commenced against one of the defendants in this action, The New York City Housing Authority ("NYCHA"). NYCHA has moved for an order striking Plaintiffs' motion. For the reasons set forth, Plaintiffs' motion is granted in part as set forth below, and NYCHA's motion is denied.
Prior Proceedings A. The Present Motions
Plaintiffs' application for attorneys' fees and expenses was originally filed on February 5, 2003. After extensions of time had been granted so that the parties could engage in settlement discussions, NYCHA's opposition to this motion was filed on July 16, 2003. Additional efforts to reach a settlement were made, and Plaintiffs' reply brief was filed on June 18, 2004. On July 7, 2004, NYCHA submitted a letter brief seeking to strike Plaintiffs' application for attorneys' fees and expenses. Both motions were marked as fully submitted without oral argument on November 1, 2004. Additional briefing was subsequently submitted by NYCHA and from the Plaintiffs. B. Prior History Of This Action
This class action was commenced on May 11, 1976 by nonwhite individuals who alleged that as a result of a system of racial, ethnic and religious quotas operated by NYCHA, Plaintiffs and members of their class were denied access to low-income public housing in certain housing developments and publicly financed apartments — i.e., Jonathan Williams Plaza, Independence Towers, Taylor-Wythe Houses, 115-123 Division Avenue, and Bedford Gardens (the "Williamsburg Developments") — in the Williamsburg section of Brooklyn, New York. According to the complaint, this quota system violated NYCHA regulations; regulations of the United States Department of Housing and Urban Development, 24 CFR § 1.4(b)(2)(ii); and 42 U.S.C. §§ 1981, 1982, 1983, and 3604(b).
On May 5, 1978, the Honorable Charles H. Tenney approved a Consent Decree executed by the parties that provided in pertinent part as follows:
[N]on-white applicants for rentals at Jonathan Williams Plaza, Independence Towers and 115-123 Division Avenue will be given preference until 32% of the dwelling units in those developments are rented to non-white families. At Bedford Gardens the goal for the adjustment period is that 35% of the apartments shall be rented to non-whites. The completion of the initial renting of apartments at [Roberto] Clemente Plaza ("Clemente Plaza") will see that development rented 51% to non-whites and 49% to whites. The 60% white/40% non-white ratio at Taylor-Wythe Houses will not be changed.Williamsburg Fair Housing Committee v. New York City Housing Authority, 450 F. Supp. 602, 607 (S.D.N.Y. 1978).
Construction of Clemente Plaza was completed only after Plaintiff's original action was brought. Williamsburg, 450 F. Supp. at 607.
In 1989, the Plaintiffs filed a contempt motion challenging NYCHA's continuing use of racial preferences in violation of the 1978 Consent Decree.
On April 19, 1991, Judge Tenney so ordered a Stipulation and Settlement executed by the parties (the "1991 Stipulation") that provided apartments to 190 non-whites who had been denied public housing in the Williamsburg Developments because of their race.
In early 1993, the Plaintiffs reviewed tenant information and NYCHA reports with respect to vacancy rates and turnover rates for apartments in the Williamsburg Developments. Based on this review, the Plaintiffs concluded: (1) that there had been a significant decline in the vacancy rate among white-occupied apartments and (2) that as a result of the transfer of white-occupied apartments to other white tenants, the rate of desegregation in the Williamsburg Developments had been significantly slowed.
In January, 1995, the Plaintiffs submitted an order to show cause that the Court declined to sign. Instead, the submission was treated as a motion for: (1) an order holding the defendants in civil contempt, (2) a temporary restraining order, and (3) expedited discovery. The Plaintiffs' motion papers alleged, inter alia, that NYCHA
wrongfully threatened to evict and sanction tenants, rigged tenant elections, denied use of common facilities, ignored complaints of death threats and physical assaults by Hasidic tenants on non-Hasidic tenants, delayed life threatening [apartment] repairs, and otherwise coerced, intimidated, threatened and interfered with tenants on account of race, color, national origin and religion.
(Declaration of Foster Maer signed January 31, 1995 ("Maer Decl."), at ¶ 3.) The motion also alleged that NYCHA (1) "waged a war" against a group of African-American and Latino residents organized under the name Concerned Residents by "threatening" to evict them (id. ¶ 8), (2) ignored or condoned "physical assaults and death threats made by Hasidic tenants against the group's members and supporters" (id.), and (3) wrongfully denied Concerned Residents' requests to meet in the NYCHA community center. (Id. at ¶¶ 61-67).
On June 5, 1996, the February, 1995 motion was dismissed for failure to prosecute with leave granted to renew on the original papers.
By Order dated June 21, 1995, the Court rejected plaintiffs' motion for a preliminary injunction with respect to use of the community center at Taylor-Wythe Houses by Concerned Citizens. On June 11, 1997, Plaintiffs withdrew the allegations that NYCHA refused to repair "life-threatening" conditions in minorities' apartments. (Letter from Foster Maer of June 11, 1997, at 1.)
In the fall of 1996, an effort was commenced to explore the possibility of settling the dispute concerning the transfer of apartments among white tenants. Meetings were held and correspondence was exchanged. These efforts were unsuccessful and the parties subsequently engaged in discovery and motion practice.
On February 20, 1998, NYCHA moved to terminate the Consent Decree, and in May, 1998, Plaintiffs cross-moved for contempt and other relief. The Plaintiffs also met with counsel for HUD in an effort to settle the litigation, and they sought the assistance of certain Latino officials and activists.
In November, 1998, with HUD Chief Administrative Law Judge Alan Heifetz ("Heifetz") acting as a mediator, NYCHA and the Plaintiffs resumed negotiations. After more than two years of settlement discussions between Plaintiffs and NYCHA, the parties reached an agreement. Further negotiations ensued, and a Settlement Agreement was executed by the parties on May 30, 2002.
Pursuant to a request by NYCHA, the United Jewish Organizations of Williamsburg, Inc. ("UJO") was included as a signatory to the Settlement Agreement.
Pursuant to the Court's standard motion practice, a Fed.R.Civ.P. 23(e) fairness hearing was held on Wednesday, September 25, 2002. That same day, the Settlement Agreement was so ordered by the Court.
The Settlement Agreement provided for: (1) the immediate termination as to NYCHA of both the 1978 Consent Decree and the 1991 Stipulation; (2) changes to NYCHA's lease-succession rules; (3) an independent arbiter, selected by the parties, to oversee lease successions for a period of three years and sixty days after entry of the Court's endorsement of the Settlement Agreement; (4) a special waiting list for up to 70 persons who between 1991 and 1993 may not have had the opportunity to request an apartment in the Williamsburg Developments; and (5) the offer of 150 Section 8 housing vouchers to current Williamsburg Development residents. All of the provisions of the Settlement Agreement are race-neutral.
The vouchers were offered pursuant to Section 8(o) of the United States Housing Act of 1937. See 42 U.S.C. § 1437(f).
Discussion
Pursuant to the Civil Rights Attorneys Fees Award Act of 1976, 42 U.S.C. § 1988, Plaintiffs seek an award of $1,381,005.00 in attorneys' fees associated with: (1) the investigation that commenced in 1993 of reports concerning the alleged illegal transfer among white tenants of apartments in the Williamsburg Developments; (2) attempts to work with NYCHA to address this alleged transfer problem; (3) the prosecution of plaintiffs' January, 1995 motion and May, 1998 cross-motion; (4) opposition to defendants' February, 1998 motion; and (5) negotiations culminating in the September, 2002 Settlement Agreement.
Section 1988 provides, in pertinent part, that "in any action or proceeding to enforce a provision of sections 1981, . . . 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. . . ." 42 U.S.C. § 1988(b).
In opposition to Plaintiffs' application, NYCHA argues that the Settlement Agreement does not qualify as a judgment, consent decree, or any other document entitling the Plaintiffs to attorneys' fees because: (1) the Court did not dictate its terms; (2) in contrast to the 1978 Consent Decree and the 1991 Stipulation, in which the Court explicitly retained jurisdiction, the Settlement Agreement delegated oversight responsibility to a private arbiter; and (3) the Court's review of the Settlement Agreement, while fully compliant with Fed.R.Civ.P. 23(e) on judicial approval of class action settlements, did not rise to the level of scrutiny applied to a consent decree. A. The Plaintiffs Are Prevailing Parties
1. The Second Circuit Has Adopted A Broad Construction Of The Term "Prevailing Party"
NYCHA has argued that Plaintiffs are not entitled to attorneys' fees pursuant to Section 1988(b) because they do not meet the Supreme Court's definition of "prevailing parties." See Buckhannon Bd. Care Home, Inc. v. W. Virginia Dep't of Health Human Res., 532 U.S. 598, 604 (2001). The Buckhannon court held that "[a] defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur" to justify an award of attorneys' fees pursuant to the fee-shifting provisions of either the Fair Housing Amendment Act, 42 U.S.C. § 3613(c)(2), or the Americans with Disabilities Act, 42 U.S.C. § 12205. Id. at 605.
NYCHA has interpreted Buckhannon to hold that litigants are entitled to "prevailing party" status only if they have "[secured] a judgment on the merits or a court-ordered consent decree." (Def. Mem. Opp. Pl's Application Attys.' Fees and Expenses, at 13.)
NYCHA's interpretation of Buckhannon has been rejected by the Second Circuit. See Preservation Committee of Erie County v. Federal Transit Administration, 356 F.3d 444, 452 (2d Cir. 2004) (adopting the view that "Buckhannon does not limit fee awards to enforceable judgments on the merits or consent decrees.") Rather, the Second Circuit has read Buckhannon to hold that "status as a "prevailing party" is conferred whenever there is a `court ordered chang[e] [in] the legal relationship between [the plaintiff] and the defendant' or a `material alteration of the legal relationship of the parties.'" Id. (quoting Buckhannon, 532 U.S. at 792 (alterations in original) (internal citations omitted)); see also Torres v. Walker, 356 F.3d 238, 244 (2d Cir. 2004) (stating that "[a]ccording to the [Buckhannon] Court, to be a prevailing party, there must be a `judicially sanctioned change in the legal relationship of the parties' that bears the `necessary judicial imprimatur.'") (quotingBuckhannon, 532 U.S. at 605); Roberson v. Giuliani 346 F.3d 75, 79-80 (2d Cir. 2003) (stating that "in order to be considered a `prevailing party' after Buckhannon, a plaintiff must not only achieve some `material alteration of the legal relationship of the parties,' but that change must also be judicially sanctioned") (quoting Buckhannon, 532 U.S. at 604); New York State Federation of Taxi Drivers, Inc. v. Westchester County Taxi and Limousine Com'n, 272 F.3d 154, 158 (2d Cir. 2001) (per curiam) (same).
2. The Settlement Agreement Materially Altered The Legal Relationship Of The Parties
NYCHA has not, and cannot, seriously challenged that the Settlement Agreement satisfies the first prong of Buckhannon's "prevailing party" test — i.e., whether the legal relationship of the parties has been materially altered. As described above, the Settlement Agreement mandated that NYCHA: (1) modify its rules concerning the succession of tenancies; (2) for a period of three years and sixty days, submit to Heifetz documentation concerning all apartments for which NYCHA has approved lease successions; (3) abide by Heifetz' determination concerning the legitimacy of any such lease succession; (4) offer 150 Section 8 housing vouchers to tenants of the Williamsburg Developments; (5) revise its waiting list for the Williamsburg Developments so as to afford a priority to certain persons who were affected by the practices that were the subject of this litigation; and (6) share responsibility for lease successions with the Plaintiffs.
Based on the foregoing, it is determined that the Settlement Agreement materially altered the legal relationship of the parties.
3. The Settlement Agreement Carries Sufficient Judicial Imprimatur To Justify An Award Of Attorneys' Fees
As described above, in order to establish that they are entitled to attorneys' fees pursuant to Section 1988, Plaintiffs must demonstrate not only that some material alteration of the legal relationship between the parties was achieved, but also that the relief so provided carried sufficient judicialimprimatur. See Roberson, 346 F.3d at 80. a. The Settlement Agreement Disposed Of The Underlying Action With Respect To NYCHA
The Plaintiffs argue that sufficient judicial imprimatur exists with respect to the Settlement Agreement because the lawsuit has not been dismissed and is still pending. There is at least some authority from this district to support the general proposition that judicial imprimatur exists with respect to a partial settlement where "the underlying litigation continued in full force" and the parties to the agreement "remained before the Court." Brandner Corp. v. V-Formation, Inc., No. 96 Civ. 3163 (JSR), 2004 WL 1945761, at *2 (S.D.N.Y. Mar. 4, 2004).
Here, NYCHA is not before the Court in connection with the underlying litigation. The Settlement Agreement states explicitly that it shall have the effect of dismissing Plantiffs' action against NYCHA. Paragraph one of the Settlement Agreement states as follows:
The Consent Decree entered on May 5, 1978, the Stipulation and Order dates April 17, 1991, and the underlying action are hereby dissolved, extinguished, and for all purposes terminated and dismissed as to NYCHA; and all rights, duties and obligations as to NYCHA created thereunder shall cease to exist. All pending motions and cross-motions are hereby withdrawn with prejudice. (09/25/02 Settlement Agreement at ¶ 1.) Since NYCHA is not currently before the Court, there is no basis for recognition of judicial imprimatur pursuant to the rule suggested by the Brandner court.b. The Settlement Agreement Did Not Expressly Retain The District Court's Enforcement Jurisdiction
The Second Circuit has held that in the context of a stipulation of settlement, a district court's express retention of enforcement jurisdiction over the agreement is a sufficient demonstration of judicial imprimatur to convey prevailing party status on the plaintiff. See Torres, 356 F.3d at 245 (holding that a so-ordered stipulation of dismissal failed to satisfy theBuckhannon judicial imprimatur requirement in part because the court had not expressly retained jurisdiction over enforcement of the terms of settlement); Roberson, 346 F.3d at 84 (holding that a dismissal in which the court expressly retained jurisdiction to enforce the settlement terms satisfied the Buckhannon judicial imprimatur requirement) (citingKokkonen v. Guardian Life Ins. of America, 511 U.S. 375 (1994)).
However, the Settlement Agreement contains no such term expressly retaining the Court's enforcement jurisdiction. Rather, the Settlement Agreement merely lists the terms of the settlement.
Plaintiffs argue that the mere fact that the Court so ordered the Settlement Agreement is sufficient judicial imprimatur to justify an award of attorneys' fees under 42 U.S.C. § 1988. This argument has been flatly rejected by the Second Circuit. See Torres, 356 F.3d at 244 (stating that the "`so ordered' stipulation of dismissal in this case does not carry with it a `sufficient judicial imprimatur' to warrant treatment as a monetary judgment. . . .")
c. The Settlement Agreement Physically Incorporated The Terms Of Settlement And There Is Other Evidence That The Court Intended To Place Its Imprimatur On The Settlement
The Second Circuit has stated that judicial imprimatur can be found where the court physically incorporates the terms of settlement into its order and there is also some other evidence that the court intended to place its imprimatur on the settlement. Id. at 244-45 n. 6. As stated above, the document so ordered by the Court on September 25, 2002 enumerated all terms of the agreement in their entirety.
Moreover, there is ample evidence that the Court intended to place its imprimatur on this settlement: The Court held multiple conferences to assist in reaching a settlement, participated in an effort to resolve contested issues, and reviewed the settlement as required by Fed.R.Civ.P. 23(e). Also, a fairness hearing was held and the Court approved the Settlement Agreement immediately after such hearing. d. The Settlement Agreement Created Obligations To Be Performed And Enforced By The Court
Judicial imprimatur can also be found where a so-ordered stipulation of settlement (1) contains "obligations of the court that [are] beyond the power of the parties to perform and that [can] be enforced only by the [court]" and (2) where the court has "carefully reviewed the terms of the [settlement]. . . ."Torres, 356 F.3d at 245 (citing Geller v. Branic Int'l Realty Corp., 212 F.3d 734 (2d Cir. 2000)).
As described above, the Settlement Agreement provided for specified amendments to NYCHA's lease-succession rules. To ensure NYCHA's enforcement of the amended lease-succession rules, the Settlement Agreement also specified the following procedure for the periodic review of decisions by NYCHA to approve lease-succession applications concerning rental units in the Williamsburg Developments. The Settlement Agreement provided as follows:
Within 30 calendar days of the end of each calendar quarter, NYCHA will forward to Alan W. Heifetz, Esq. ("Heifetz") a list of those units at [the Williamsburg Developments] at which, during the quarter, and subject to the terms of this agreement, persons have been advised that their application for lease succession have been approved. The list shall be accompanied by the document and information upon which NYCHA relied both to evaluate and to grant the request for succession ("Administrative Record"). . . .
Pursuant to this Settlement Agreement, Heifetz shall review each decision to grant succession at the Developments. . . . Heifetz shall determine on the basis of the Administrative Record as a whole whether a decision to grant succession is without a reasonable basis. . . .
If Heifetz finds that a decision to grant succession is without a reasonable basis, he shall advise NYCHA in writing of his findings and the specific reasons therefor no later than 45 days after the close of all submissions. NYCHA shall send the affected person a copy of Heifetz's finding which, by reason of NYCHA's agreement to be bound by that finding, shall constitute NYCHA's final and binding determination of the person's remaining family member claim. Nothing contained herein shall abrogate any rights the affected person may otherwise have to challenge the final and binding determination in a court of competent jurisdiction, nor shall anything contained herein be deemed to confer upon the affected person any right to sue Heifetz.
(Settlement Agreement at ¶ 5.)
The above-described provisions relating to post-approval review of lease successions are sufficient to establish judicialimprimatur. First, since the above-described review process is not subject to oversight by NYCHA, it is an obligation that is beyond the power of the parties to perform. See Torres, 356 F.3d at 245. Second, in his capacity as arbiter selected by the parties, Heifetz performs a function that, pursuant to the Settlement Agreement, would otherwise be required of this Court. Therefore, maintenance of the post-approval review process is functionally equivalent to an obligation undertaken by the Court, and it can be enforced only by the Court. See id. In the event that NYCHA fails to provide to Heifetz the required lease-succession information, it would be this Court's obligation to determine whether a civil contempt order is warranted. See Hester Indus., Inc. v. Tyson Foods, Inc., 160 F.3d 911, 917 n. 2 (citing Kokkonen, 511 U.S. at 375).
The Settlement Agreement makes clear that Heifetz does not act on behalf of NYCHA, HUD or any other administrative agency. Paragraph 14 states that "[i]t is the parties' and Heifetz's understanding that Heifetz is participating in these proceedings solely by virtue of the parties' agreement and is not serving in any official capacity or pursuant to any statute or regulation."
Finally, it is undisputed that this court has carefully reviewed the terms of the Settlement Agreement, as required by the Second Circuit. See Torres, 356 F.3d at 245. As described above, the Court undertook a review of the settlement terms as required by Rule 23(e), and it so ordered the Settlement Agreement only after a fairness hearing was conducted.
e. Preservation Coalition Does Not Bar Plaintiffs' Recovery of Attorneys' Fees
According to NYCHA, the Second Circuit's decision inPreservation Coalition, 356 F.3d 444, bars Plaintiffs' recovery of attorneys' fees. In Preservation Coalition, an historic preservation organization alleged that various federal and state agencies had violated the National Historic Preservation Act, the National Environmental Policy Act, and the Transportation Act by failing to consider and address the impact of developing an area of Buffalo's waterfront on an historic Erie Canal terminus. See Preservation Coalition, 356 F.3d at 448. In particular, the historic preservation organization challenged a Final Environmental Impact Statement ("FEIS") as inadequate because it failed to consider a subsequently excavated historic slip wall, and moved for an injunction against further construction and a writ of mandamus ordering the agencies to prepare a Supplemental Environmental Impact Statement ("SEIS"). See id.
The district court denied the injunction, but ordered the agencies to prepare an SEIS to address the issues raised by the discovery of the slip wall. See id. Thereafter, the district court entered a stipulation and order which memorialized the parties agreement that the development project should include the newly discovered slip wall; dismissed the historic preservation organization's claims; vacated the district court's prior orders; required the agencies to prepare a new FEIS, which the historic preservation organization reserved the right to challenge; and thereafter awarded fees and costs of approximately $167,000.See id., at 449.
On appeal, the Second Circuit affirmed in part and vacated in part, holding that the historic preservation organization could only recover fees for obtaining the Court-ordered SEIS, but not for any work thereafter, including the stipulation and order that settled the litigation. The Second Circuit explained that:
We agree with appellants that, under Buckhannon — which was decided after the settlement was reached — appellee is not entitled to recover the fees and costs associated with obtaining the Stipulation and Order that dismissed the case with prejudice. The effect of the Stipulation and Order was to vacate the district court's orders providing for ongoing judicial involvement and to begin the environmental review process anew. This Stipulation and Order is functionally a private settlement agreement that the Supreme Court concluded does not provide prevailing party status to a plaintiff because, by its own terms, it eliminated the ongoing judicial oversight in favor of restarting the review process from scratch.Id. at 451.
Preservation Coalition is distinguishable on its facts. There, the stipulation and order that settled the litigation merely provided that the parties would submit themselves to an environmental review process conducted and enforced by the relevant administrative agencies. The district court undertook no obligation of its own. In contrast, here the Court has taken on an obligation — i.e., the obligation to engage in post-approval review of lease successions — that is beyond the power of the parties to perform and can only be enforced by the Court.
Furthermore, although the Preservation Coalition court indicated that stipulation and order that settled the litigation enumerated the terms of the settlement, id. at 449, it did not indicate that there was additional evidence that the district court intended to place its judicial imprimatur on the settlement. In contrast and as described above, there is ample evidence here beyond the mere enumeration of settlement terms in the Settlement Agreement to demonstrate that Court intended to place itsimprimatur on the settlement between the parties.
Based on the foregoing, it is determined that the Settlement Agreement carried adequate judicial imprimatur to satisfy the second prong of the Buckhannon test for prevailing party status.
B. NYCHA Is Ordered To Pay Attorneys' Fees In The Amount Of $187,680
Where an award of fees is found to be warranted pursuant to federal law, a court begins by determining the "lodestar amount." This "lodestar" is "`properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.'" Quaratino v. Tiffany Co., 166 F.3d 422, 424 (2d Cir. 1999) (quoting Blanchard v. Bergeron, 489 U.S. 87, 94 (1989)). The lodestar includes time spent in preparation of a fee application. Valley Disposal, Inc. v. Central Vermont Solid Waste Management Dist., 71 F.3d 1053, 1059 (2d Cir. 1995).
In calculating the lodestar, the district court typically perform a three-step process: (1) it determines the reasonable hourly rate for each attorney; (2) it excludes excessive, redundant, or otherwise unnecessary hours; and (3) it excludes hours dedicated to severable unsuccessful claims. See generally Hensley v. Eckerhart, 461 U.S. 424, 433-35, 440 (1983); Quaratino, 166 F.3d at 425. In a fourth step, the Court may choose to provide a reduction of the lodestar depending upon a prevailing party's limited success. See Hensley, 461 U.S. at 440.
Based on the extensive submissions of the parties, two issues are here presented: the amount of time appropriately expended and the applicable hourly rate.
1. Requirements Concerning Records Submitted In Support of Section 1988 Fee Applications
"The burden is on counsel [requesting fees] to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required. . . ." F.H. Krear Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987). It is well established that pursuant to 42 U.S.C. § 1988(b), "it is necessary for the Court to examine contemporaneous billing records, time sheets or other documented, authentic, and reliable time records." Murray ex rel. Murray v. Mills, 354 F. Supp. 2d 231, 238 (E.D.N.Y. 2005). As stated by one court of this district:
In order to recover attorney's fees, the prevailing party must submit time records specifying, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). Although time records need not contain great detail and specificity, attorneys should identify the general subject matter of their work. [Hensley, 461 U.S. at 437 n. 12]. If "the time records submitted in support of a fee application lack sufficient specificity for the Court to assess the reasonableness of the amount charged in relation to the work performed, the Court is justified in reducing the hours claimed for those entries." Mautner v. Hirsch, 831 F. Supp. 1058, 1077 (S.D.N.Y. 1993), aff'd in part, rev'd in part, 32 F.3d 37 (2d. Cir. 1994) (citations omitted); see also Ragin v. Harry Macklowe Real Estate Co., 870 F. Supp. 510, 520, (S.D.N.Y. 1994) (reducing lodestar by thirty percent due in part to vague time entries such as "telephone call to S. Berger," "review Macklowe files," and "conference with T. Holzman").Williams v. New York City Housing Authority, 975 F. Supp. 317, 327 (S.D.N.Y. 1997).
Fee applicants should not "`lump several services or tasks into one time sheet entry because it is then difficult . . . for a court to determine the reasonableness of the time spent on each of the . . . services or tasks provided. . . . [I]t is the responsibility of the applicant to make separate time entries for each activity.'" Wilder v. Bernstein, 975 F. Supp. 276, 286 (S.D.N.Y. 1997) (quoting In re Poseidon Pools of America, Inc., 180 B.R. 718, 731 (Bankr. E.D.N.Y. 1995) (internal quotations and citation omitted)).
"[M]ixed-class entries are properly excluded since, without more detail, a court cannot determine the proper compensation."Hutchinson v. McCabee, No. 95 Civ. 5449 (JFK), 2001 WL 930842, at *4 (S.D.N.Y. Aug. 15, 2001); see also Beberaggi v. New York City Transit Auth., No. 93 Civ. 1737 (SWK), 1994 WL 48805, at *3 (S.D.N.Y. Feb. 17, 1994) (deducting hours from fee request in part because plaintiff's counsel's time sheets do not specify the amount of time spent on each separate task");Williams, 975 F. Supp. at 327 (rejecting billing entries where, among other things, attorneys mixed legitimate requests with requests for non-compensable work).
Finally, the Second Circuit has stated that "[a]ny attorney — whether a private practitioner or an employee of a nonprofit law office — who applies for court-ordered compensation . . . must document the application with contemporaneous time records."Carey 711 F.2d at 1148. "`Attorney affidavits which set forth all charges with the required specificity but which are reconstructions of the contemporaneous records satisfy the rationale underlying Carey. . . .'" Cruz v. Local Union No. 3 of the IBEW, 34 F.3d 1148, 1160 (2d Cir. 1994) (quoting David v. Sullivan, 777 F. Supp. 212, 223 (E.D.N.Y. 1991)). However, such typed reconstructions fail to satisfy Carey if they contain more detail than the original records. See, e.g., People ex rel. Vacco v. RAC Holding, Inc., 135 F. Supp. 2d 359, 364 n. 1 (N.D.N.Y. 2001)
2. Certain Records Submitted By Plaintiffs' Counsel Are Impermissibly Vague
Here, certain of the time entries are impermissibly vague in that they: (1) do not adequately describe the subject matter of the tasks purportedly performed; (2) fail to adequately differentiate tasks that are compensable at different rates; and (3) combine compensable and non-compensable tasks into single entries.
Many time entries fail to indicate the subject matter of telephone calls, conferences, and documents reviewed and drafted, or otherwise provide context by referring to specific issues or events in the case. With respect to the records submitted by Plaintiffs' attorney Foster Maer, there is significant over-reliance on generic descriptions such as "research," "telephone conference," "conf w AL," "TC NC," "mtg w/GC," "Prep record, litigation," "ltr. to HS," "memo/law," and "fee prep." (See Declaration of Gary Nester signed July 15, 2003 ("Nester Decl."), at Ex. CC.) Similarly, the time records of Plaintiffs' attorney Alan Levine also contain a significant number of time entries bearing generic labels such as "Tel NC," "ltrs to NC," "motion to compel," "brief and affs.," and "memo." (See Affirmation of Alan Levine signed February 15, 2003 ("Levine Aff."), at Ex. A.)
Furthermore, a review of the records submitted reveals that certain paralegal work (e.g., reviewing tenant files and drafting file summaries) was combined with attorney work (e.g., drafting court documents and preparing for conferences).
A number of entries combine compensable with non-compensable tasks including publicity efforts, lobbying, and clerical work. For example, Levine's 4.5 hour time entry for July 23, 1998 combined an unspecified amount of time spent drafting a letter "for JAF to White House Staff" with various telephone conferences and the review of tenant files. (See Levine Aff. Ex. A.) Moreover, reimbursement was sought for 391.65 hours spent on tasks that Plaintiffs' attorneys admit are not compensable. (See Nester Dec. Ex. EE; Affirmation of Foster Maer signed on February 5, 2003 ("Maer Aff."), at ¶ 67; Levine Aff. ¶ 51a).
3. Plaintiffs' Counsel May Not Recover Fees Evidenced Only By Non-Contemporaneous Time Entries
In support of their fee application, Plaintiffs' counsel submitted typed versions of the original handwritten records. Upon NYCHA's request, Plaintiffs' counsel also produced the handwritten notes that were made contemporaneously with the events reflected therein. (See Nester Decl. ¶¶ 59-60 Exs. U-V.) A comparison of the two sets of records for Levine shows that the typed records do not merely transcribe the handwritten records. Rather, they provide greater detail about the nature of the work, increase the number of hours attributed to certain tasks, and add new entries in some instances. (See Nester Decl. ¶¶ 64-66 Ex. X.) "Such `hindsight review' is not an adequate substitute for contemporaneous time records." Broadcast Music, Inc. v. R Bar of Manhattan, Inc., 919 F. Supp. 656, 661 (S.D.N.Y. 1996) (quoting Ward v. Brown, 899 F. Supp. 123, 130 (W.D.N.Y. 1995)). 4. NYCHA's Calculation Of Hours Is Adopted
For the reasons set forth above, NYCHA's calculation of the time expended by Plaintiffs' counsel is adopted. That calculation is as follows:
Time Expended by Maer and His Associates
Task Hours
Maer Associates
Discovery (Tenant Files) -- 250 Discovery (Depositions) 83.6 -- 1998 Cross Motion 24 16 Settlement 111.2 -- Fee Application 29.1 19.4 Total Hours: 247.9 285.4
Time Expended by Levine and His Associates
Task Hours
Levine Associates
1998 Cross-Motion 24 16Settlement 185 --Fee Application 13.5 9Total Hours: 222.5 25
5. Applicable Hourly Rates
An hourly rate of $350 is sought by the Plaintiffs for the work performed by Foster Maer. An hourly rate of $375 is sought by the Plaintiffs for work performed by Alan Levine. The parties agree that $150 is the appropriate hourly rate for work performed by the associates of both Maer and Levine.
The Second Circuit has stated that "attorney's fees are to [be] awarded with an eye to moderation, seeking to avoid either the reality or the appearance of awarding windfall fees." Carey, 711 F.2d at 1139 (internal quotations omitted). The need to avoid the appearance of awarding a windfall takes on added importance when the defendant is a public agency. See, e.g., Santa Fe Natural Tobacco Co., Inc. v. Spitzer, Nos. 00 Civ. 7274 (LAP), 00 Civ. 7750 (LAP), 2002 WL 498631, at *5 (S.D.N.Y. Mar. 29, 2002).
The rates to be used in calculating the lodestar are the market rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984);see also Kirsch v. Fleet Street Ltd., 148 F.3d 149, 172 (2d Cir. 1998); Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997).
In determining the prevailing market rate in the community, the following factors should be considered: (1) the experience, reputation and ability of the attorneys, (2) the customary fee charged by counsel and their actual billing practice, (3) whether the fee is fixed or contingent, and (4) what courts have awarded to other counsel with similar backgrounds in similar cases. See Williamsburg Fair Housing Committee v. Ross-Rodney Housing Corp., 599 F. Supp. 509, 516 (S.D.N.Y. 1984).
Levine has been a full-time civil rights litigator and educator for approximately thirty-eight years, and he has a private practice devoted exclusively to civil rights matters. He is also part-time special counsel to the Puerto Rican Legal Defense and Education Fund ("PRLDEF"), where he participates in and consults on federal civil rights litigation. He is an adjunct professor of law at Brooklyn Law School, and he has previously taught at the Benjamin N. Cardozo School of Law and the New York University School of Law. For five years, he was an associate professor of Hofstra University School of Law, where he was the director of the school's constitutional law clinic. He has served as class counsel in a number of significant civil rights cases in state and federal courts.
Maer has been a full-time public interest litigator for approximately twenty-five years. After graduating from Northeastern University School of Law, he was awarded a Reginald Heber Smith Community Law Fellowship (1978-80), and he worked for Connecticut Legal Services through 1981, serving as the managing attorney for his last year there. In 1981, Maer went to work for The Legal Aid Society in New York City as a staff attorney. He was counsel on a number of significant cases. In 1989, he began working at Brooklyn Legal Services Corporation A ("BLSA"). As the director of legal work, he had primary responsibility for overseeing the legal work of 15 staff attorneys and 4 paralegals at the Williamsburg office. He has litigated numerous cases concerning environmental and land-use issues. He served as counsel in the instant case. In 1996 Maer began working part-time at PRLDEF and BLSA. In the beginning of 2000, he began working full-time at PRLDEF.
This Court has awarded an experienced civil rights attorney with 18 years experience an hourly rate of $375. See Davis v. New York City Housing Authority, Nos. 90 Civ. 628 (RWS), 92 Civ. 4873 (RWS), 2002 WL 31748586, at *3 (S.D.N.Y. Dec. 6, 2002);see also R.E. v. New York City Bd. of Educ., Dist. 2, No. 02 Civ. 1067 (DC), 2003 WL 42017, at *3 (S.D.N.Y. Jan. 6, 2003) (awarding $375 per hour to a lawyer experienced in IDEA cases);Biard v. Boies, Schiller Flexner, 219 F. Supp. 510, 523 (S.D.N.Y. 2002) (awarding an experienced employment discrimination lawyer an hourly rate of $375); Green v. Torres, No. 98 Civ. 8700 (JSR), 2002 WL 922174, at *1 (S.D.N.Y. May 7, 2002) (awarding an experienced civil rights lawyer $400 per hour); Marisol A. v. Giuliani, 111 F. Supp. 2d 381, 386 (S.D.N.Y. 2002) (awarding $375 to the lead attorney in a civil rights case). Furthermore, a recent billing survey made by the National Law Journal shows that senior partners in New York City charge as much as $750 per hour and junior partners charge as much as $490 per hour. See In Focus: Billing; A Firm-by-Firm Sampling of Billing Rates Nationwide, National Law Journal, December 6, 2004, at 22.
On the basis of their experience and comparable awards, a reasonable hourly rate for both Maer and Levine is $375 an hour.
6. Lodestar Calculation
Maer and Levine billed a total of 470.4 hours in connection with the above-described motions. Based on an hourly rate of $375, they generated fees in the amount of $176,400.
The associates of Maer and Levine billed a total of 310.4 in connection with the above-described motions. Based on an hourly rate of $150, they generated fees of $46,560.
7. Reduction Of Lodestar To Reflect Plaintiffs' Partial Success
As reflected in the Settlement Agreement, the Plaintiffs were only partially successful with respect to the above-described motions. Therefore, a reduction in the lodestar is warranted.See Hensley, 461 U.S. at 440. For this reason, the amount of fees that are recoverable will be reduced by $35,280. Conclusion
The Plaintiffs' motion for a fee award is granted in part, and NYCHA's motion to strike the application is denied. Based upon the submissions to date, a fee award in the amount of $187,680 is appropriate.
Because the parties may well have anticipated only a decision on the prevailing party issue, leave is granted for any additional submissions within thirty (30) days.
It is so ordered.