Opinion
1:19-cv-10004 (JPO) (SDA)
06-24-2022
Jeriel Alexander, Plaintiff, v. Private Protective Services, Inc., Defendant.
TO THE HONORABLE J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, United States Magistrate Judge.
This Report and Recommendation addresses the amount of reasonable attorneys' fees to be awarded in favor of Defendant Private Protective Services, Inc. (“Defendant” or “PPS”) in connection with filing its motion to dismiss in this action. For the reasons set forth below, I respectfully recommend that PPS be awarded the sum of $16,760.00.
BACKGROUND
On October 25, 2019, Plaintiff Jeriel Alexander (“Plaintiff” or “Alexander”), proceeding pro se, commenced this action by filing a Complaint. (Compl., ECF No. 2.) On November 27, 2019, he filed an Amended Complaint. (Am. Compl., ECF No. 6.) The Amended Complaint asserts a single claim against PPS, pursuant to Title II of the Civil Rights Act of 1964 (“Title II”), 42 U.S.C. § 2000a, seeking monetary damages in the amount of $1.2 million. (See Am. Compl. at 2, 5-6.) On September 13, 2021, PPS filed its motion to dismiss the Amended Complaint. (See Def.'s 9/13/21 Mot., ECF No. 55.) Prior to filing its motion to dismiss, PPS sent an email to Alexander requesting that he voluntarily dismiss his Title II claim, because he “cannot recover the monetary damages [he sought] in [his] amended complaint under 42 USC 2000a ,” but Plaintiff refused. (See Bressler 9/13/21 Decl., Ex. A, ECF No. 57-1.)
On November 24, 2021, I recommended, in part, that PPS be awarded its reasonable attorneys' fees in connection with its filing of its motion to dismiss since Plaintiff's claim under Title II for damages was frivolous. (See 11/24/21 Report & Recommendation, ECF No. 64, at 9, 12.) On May 18, 2022, District Judge Oetken adopted my Report and Recommendation. (See 5/18/22 Op. & Order, ECF No. 70.) On May 18, 2022, PPS was directed to file its submissions in support of the reasonable attorneys' fees it incurred in connection with its motion to dismiss. (5/18/22 Order, ECF No. 71, ¶ 1.) On June 1, 2022, PPS filed a memorandum of law and declaration, as required. (See Def.'s 6/1/22 Mem., ECF No. 72; Grigsby 6/1/22 Decl., ECF No. 73.) On June 17, 2022, Alexander filed his opposition. (See Pl.'s 6/17/22 Opp., ECF No. 78.)
LEGAL STANDARDS
Under Title II, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 2000a-3(b). The fee-shifting provision under Title II is analogous to the fee shifting provisions of other federal civil rights statutes. For example, Section 1988 of Title 42 provides that in any action to enforce certain enumerated federal civil rights laws, “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). “[T]he governing principles and procedures [for the various statutes] are essentially the same.” DeMarco v. Ben Krupinski Gen. Contractor, Inc., No. 12-CV-00573 (SJF) (ARL), 2014 WL 3696020, at *1 (E.D.N.Y. July 22, 2014) (citation omitted).
While a district court retains discretion to determine what constitutes a reasonable fee, “this discretion is not unfettered.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). “[W]hen a prevailing party is entitled to attorneys' fees, the district court must abide by the procedural requirements for calculating those fees articulated by [the Second Circuit] and the Supreme Court.” Id. “Both [the Second Circuit] and the Supreme Court have held that the lodestar - the product of a reasonable hourly rate and the reasonable number of hours required by the case - creates a ‘presumptively reasonable fee.'” Id. (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) and Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)). This approach is intended to “produce[] an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.” Perdue, 559 U.S. at 551 (emphasis in original); see also Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277, 289-90 (2d Cir. 2011) (“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.”) (internal quotation marks and citations omitted).
“[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A reasonable rate is generally the “prevailing market rate[] for counsel of similar experience and skill to the fee applicant's counsel.” Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir. 2005). In deciding what constitutes a reasonable rate, a court may consider “rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district.” Id. “The relevant community to which the court should look is the district in which the case was brought.” Marisol A. ex rel. Forbes v. Giuliani, 111 F.Supp.2d 381, 386 (S.D.N.Y. 2000) (citation omitted); see also Arbor Hill, 522 F.3d at 190 (hourly rate deemed reasonable if reflects prevailing hourly rate in community, defined as district where district court sits).
In calculating the reasonable number of hours expended “the court takes account of claimed hours that it views as ‘excessive, redundant, or otherwise unnecessary.'” Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley, 461 U.S. at 434). In so doing, the court “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.” DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985).
District courts have “ample discretion” in “assessing the extent of staffing” that is “appropriate for a given case.” New York State Ass'n Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983). While “[t]he use of multiple attorneys . . . is not unreasonable per se,” Simmonds v. New York City Dep't of Corr., No. 06-CV-05298 (NRB), 2008 WL 4303474, at *6 (S.D.N.Y. Sept. 16, 2008) (quoting Williamsburg Fair Housing Comm. v. Ross-Rodney Hous., 599 F.Supp. 509, 518 (S.D.N.Y. 1984)), courts should reduce the hours actually expended to account for “duplicative or repetitive work.” See id.
If there is excessive or redundant billing, a court may subtract the number of excessive or “redundant hours from the amount of hours used to calculate the lodestar.” Siracuse v. Program for the Dev. of Human Potential, No. 07-CV-02205 (CLP), 2012 WL 1624291, at *34 (E.D.N.Y. Apr. 30, 2012). However, “the district court is not obligated to undertake a line-by-line review of [the prevailing party's] extensive fee application.” Marion S. Mishkin Law Office v. Lopalo, 767 F.3d 144, 150 (2d Cir. 2014). Rather, it may “use a percentage deduction as a practical means of trimming fat.” McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006) (citation omitted); see also Carey, 711 F.2d at 1146 (finding percentage reductions to be acceptable means for reducing fee applications).
A court should consider other case-specific variables when determining the amount of attorneys' fees to award, pursuant to the so-called Johnson approach, based upon the Fifth Circuit's decision in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974):
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case 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.Arbor Hill, 522 F.3d at 187 (citing Johnson, 488 F.2d at 717-19). “[W]hile a strict application of the Johnson method of calculating attorney's fees used by the Fifth Circuit is too imprecise and variable to be reliable, the twelve Johnson factors remain important tools for helping district courts calculate the lodestar and, in exceptional cases, determining whether an enhancement or cut to the lodestar is warranted.” Lilly v. City of New York, 934 F.3d 222, 233 (2d Cir. 2019).
“[T]he determination of fees should not result in a second major litigation.” Fox v. Vice, 563 U.S. 826, 838 (2011) (citation and internal quotation marks omitted). “The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” Id.
DISCUSSION
PPS seeks to recover attorneys' fees for work done in connection with the motion to dismiss by Howard W. Bressler (“Bressler”) and Julianne Laporte (“Laporte”), who both are employed at the law firm Kasowitz Benson Torres LLP (“Kasowitz Firm”). PPS seeks an hourly rate for Bressler, who is a Special Counsel, of $900.00 and an hourly rate for Laporte, who is an associate, of $700.00. (See Grigsby 6/1/22 Decl.¶ 7.) After reviewing the biographical information for Bressler and Laporte, the Court finds from relevant case law, and from its own experience litigating in this District, that the rates sought for Bressler and Laporte are reasonable. PPS seeks to be awarded for 12.4 hours spent by Bressler working on issues relating to the motion to dismiss, and for 8 hours spent by Laporte. (See Grigsby 6/1/22 Decl.¶ 8.) After careful review of the time entries for Bressler and Laporte, the Court finds that these hours spent by Bressler and Laporte were reasonable.
See Grigsby 6/1/22 Decl.¶¶ 11-12.
See, e.g., MSC Mediterranean Shipping Co. Holding S.A. v. Forsyth Kownacki LLC, No. 16-CV-08103 (LGS), 2017 WL 1194372, at *3 (S.D.N.Y. March 30, 2017) (approving as reasonable hourly rates $569.02 to $753.42 for associates and $874.60 to $1048.47 for partners).
PPS also seeks to recover for hours recorded by a third attorney, Kasowitz Firm partner Sondra D. Grigsby (“Grigsby”), on the motion to dismiss. (See Grigsby 6/1/22 Decl.¶ 7.) Although the work of Grigsby may have brought value to the client, the Court finds in its discretion that it is not reasonable to pass along to the pro se Plaintiff the cost of the time recorded by Grigsby on the motion to dismiss.
Accordingly, the Court recommends that PPS be awarded the sum of $16,760.00 (i.e., 12.4 hours by Bressler times $900.00 per hour (subtotal $11,160.00) plus 8 hours by Laporte times $700.00 per hour (subtotal $5,600.00)). I find that this award achieves “rough justice.” See Fox, 563 U.S. at 838.
In its memorandum, PPS requested an award of $11,240.00 for Bressler. (See Def.'s 6/1/22 Mem. at 5.) This request reflects a mathematical error since 12.4 times 900 equals 11,160, not 11,240.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendant be awarded the sum of $16,760.00 for attorneys' fees in connection with its motion to dismiss.
SO ORDERED.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy.
Fed. R. Civ. P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Oetken.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).