Opinion
20-CV-9522 (ER) (VF)
05-03-2024
JANE DOE, Plaintiff, v. WARREN & BARAM MANAGEMENT LLC, Defendants.
TO: THE HONORABLE EDGARDO RAMOS, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION FOLLOWING DAMAGES INQUEST
VALERIE FIGUEREDO UNITED STATES MAGISTRATE JUDGE
Plaintiff Jane Doe brought this action against Defendants Jonathan Baram and Warren & Baram Management LLC (“WBM”) on November 12, 2020, asserting three claims under the Trafficking Victims Protection Reauthorization Act of 2017 (“TVPRA”), 18 U.S.C. §§ 1591 et seq. and various state-law claims. After entry of a default judgment against WBM and Plaintiff's voluntary dismissal of Baram, the Honorable Edgardo Ramos referred this action for an inquest on damages. WBM did not file an opposition to Plaintiff's inquest submissions. After review of Plaintiff's submissions, I respectfully recommend that Plaintiff be awarded damages as set forth in detail below.
In her Complaint, the Plaintiff describes 18 U.S.C. §§ 1591 et seq. as the Trafficking Victims Protection Reauthorization Act, with the acronym “TVPRA.” Courts in this District have also referred to 18 U.S.C. §§ 1591 et seq. as the Trafficking Victims Protection Act, using the acronym “TVPA.” See, e.g., Doe 1 v. JPMorgan Chase Bank, N.A., No. 22-CV-10019 (JSR), 2023 WL 5317453, at *1 (S.D.N.Y. Aug. 18, 2023) For purposes of this R&R, I utilize the acronym “TVPRA,” as that is the acronym used by Plaintiff in her filings.
The facts recounted here are established by the evidence submitted in support of this inquest and the allegations in the Complaint, which are deemed admitted except as to damages, because of WBM's default. See Finkel v. Romanowicz, 577 F.3d 79, 83-84 (2d Cir. 2009).
Plaintiff filed her complaint on November 12, 2020. See Compl., ECF No. 1. Plaintiff alleges that in 2007 Baram and WBM knowingly lured and enticed her, when she was a minor, to the residence of Peter Nygard in New York City so that she could be sexually assaulted by Nygard. See id. ¶¶ 4, 7, 14-15. WBM is a limited liability company registered in New York State, whose business is representing models and actors for work in film, television, and print media. Id. ¶ 57. Baram is president and CEO of WBM. See id. ¶ 56. Nygard is a world-renowned fashion designer, as well as founder and chief executive of the Nygard companies. Id. ¶¶ 1, 6, 37.
In 2007, Plaintiff was a seventeen-year-old Canadian resident who dreamed of becoming a model and actress. Id. ¶ 13. Baram recruited Plaintiff to travel to New York City under the guise that WBM would serve as her talent agency and represent Plaintiff in her modeling and acting career in the United States. Id. ¶ 14. Upon her arrival in New York City, Baram brought Plaintiff to his apartment for a business meeting with the agency. Id. ¶ 15. During this meeting, Baram told Plaintiff that he had “a very important friend in the fashion business” a reference to Nygard and that he could set up a meeting between Plaintiff and Nygard that would help further her career. Id. ¶ 16. Baram told Plaintiff that to set up the meeting with Nygard he needed to take nude photographs of her to send to Nygard for his approval. Id. ¶ 17. Baram took nude photographs of Plaintiff and sent them to Nygard. Id. ¶¶ 18-19.
After telling Plaintiff that Nygard wanted to meet her, Baram immediately took Plaintiff to Nygard's apartment, knowing that Nygard intended to rape her. Id. ¶¶ 19-20, 37. At Nygard's apartment, Baram and employees of the Nygard companies gave Plaintiff alcoholic beverages spiked with drugs. Id. ¶¶ 21, 24. Plaintiff was taken into a bedroom to meet with Nygard and shortly thereafter lost consciousness. Id. ¶¶ 22, 24. Plaintiff awoke on her stomach with her dress pulled up over her waist and her underwear removed. Id. ¶ 25. When she awoke, Nygard was on top of her sodomizing her. Id. ¶ 26. Nygard continued to sodomize Plaintiff as she screamed for help and vomited. Id. ¶ 27. Then, Nygard raped Plaintiff vaginally. Id. ¶ 28.
Baram took Plaintiff back to his apartment where she slept on his couch because she had nowhere else to go and was not feeling well. Id. ¶¶ 30-31. Plaintiff awoke in the middle of the night to Baram groping her and she begged him to stop. Id. ¶ 32. Plaintiff left the next morning. Id. ¶ 33.
Plaintiff alleges that Baram and WBM knowingly conspired with Nygard to actively recruit, lure, entice, and solicit women to be raped by Nygard. Id. ¶ 35. Plaintiff asserts three claims in Counts I through III of the amended complaint under the Trafficking Victims Protection Reauthorization Act (“TVPRA”), 18 U.S.C. §§ 1591, et seq., and claims for forcible touching and attempted rape, aiding and abetting sexual battery, and conspiracy to commit sexual battery in Counts IV through VI. See Compl. ¶¶ a-d. Plaintiff seeks compensatory damages, punitive damages, and attorneys' fees and costs under the TVPRA. See Proposed Findings of Fact and Conclusions of Law (“Pl. Findings”), ECF No. 91.
Plaintiff's inquest submissions do not put forth any argument for damages under her pendant state-law claims in the Complaint. The damages Plaintiff seeks are only under the TVPRA. See Pl. Findings. Regardless, because the award recommended below under the TVPRA would sufficiently compensate Plaintiff for the harm she suffered, any separate award under her state-law claims would be duplicative. See Noonan v. Becker, No. 14-CV-4084 (JTS) (JLC), 2018 WL 1738746, at *4 (S.D.N.Y. Apr. 10, 2018) (“[W]here the plaintiff will be sufficiently compensated by a damage award on [federal] claims, a court conducting an inquest need not separately award damages on the state claims.”).
PROCEDURAL BACKGROUND
WBM was served with the complaint on November 18, 2020. See ECF No. 11. On March 11, 2021, Judge Ramos entered an order instructing Baram that WBM, “as a corporation, may not appear pro se and must retain counsel to avoid default.” ECF No. 23. The order warned Baram that if WBM did not retain counsel within 30 days, it may be held in default. Id. WBM did not retain counsel and failed to answer the Complaint, and the Clerk of Court issued a certificate of default on April 20, 2021. See ECF No. 35.
On May 6, 2021, the Court entered an Order to Show Cause directing WBM, by May 18, 2021, to justify why default judgment should not be entered against it. See ECF No. 41. WBM did not file an opposition to the motion for default judgment and did not appear or otherwise defend the action prior to May 18, 2021. On May 19, 2021, Judge Ramos entered a default judgment against WBM. See ECF No. 44.
After Plaintiff's voluntary dismissal of Baram as a defendant, Plaintiff requested an inquest on damages. See ECF No. 75. The matter was subsequently referred to the undersigned for an inquest following entry of default judgment. See ECF No. 77. On October 29, 2021, Plaintiff filed her Proposed Findings of Fact and Conclusions of Law concerning damages. See ECF Nos. 91-99. Per the Scheduling Order for the damages inquest, WBM was directed to submit a response to Plaintiff's submissions no later than December 29, 2021. See ECF No. 85. WBM never filed a response. See ECF No. 167. The Scheduling Order warned WBM that if it “fail[ed] to respond to plaintiff's submission by December 29, 2021, then this Court will proceed to issue a report and recommendation concerning damages on the basis of plaintiff's written submission alone.” See ECF No. 85 (capitalization omitted).
On October 21, 2021, Plaintiff voluntarily dismissed Baram, individually and without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). See ECF Nos. 75-76, 78.
The matter was originally referred to the Honorable Debra C. Freeman on October 22, 2021, and was reassigned to the undersigned on April 30, 2022.
More than one year later, on January 10, 2023, T. Edward Williams filed a notice of appearance on WBM's behalf. See ECF No. 147. On February 21, 2023, WBM filed a motion to set aside the default judgment. See ECF No. 154. After a response from Plaintiff and a reply from WBM, Judge Ramos denied WBM's motion to set aside the default judgment. See ECF Nos. 160-162. On July 19, 2023, WBM appealed Judge Ramos' decision to the United States Court of Appeals for the Second Circuit. ECF No. 163. On December 5, 2023, the Second Circuit dismissed the appeal “because a final order ha[d] not been issued by the district court as contemplated by 28 U.S.C. § 1291 and there is no other basis for immediate appeal.” ECF No. 170.
On December 11, 2023, more than two years after Plaintiff submitted her Proposed Findings of Fact and Conclusions of Law concerning damages, WBM submitted a letter requesting a briefing schedule to challenge certain affidavits submitted by Plaintiff as part of her inquest submissions. See ECF No. 166. A conference to address the request was held on January 18, 2024. ECF No. 168. Following the conference, the Court directed WBM to make a motion under Federal Rule of Civil Procedure 6(b), explaining why good cause exists to extend it's time to respond to Plaintiff's inquest submissions. See ECF No. 171. WBM submitted a letter responding to the Court's order on February 2, 2024. See ECF No. 172. Plaintiff submitted a response on February 13, 2024. See ECF No. 17. On March 22, 2024, I denied WBM's request, concluding that “WBM failed to proffer a satisfactory explanation for the failure to timely oppose Plaintiff's inquest submissions” and that “further delay in this case would prejudice Plaintiff.” See ECF No. 175. To date, WBM has not responded to Plaintiff's inquest submissions. The following recommendations are based on the facts asserted in the Complaint, as well as evidence presented in the declarations provided by Plaintiff.
DISCUSSION
In light of WBM's default, the Court accepts as true the well-pleaded allegations in the Complaint, with the exception of those allegations relating to damages. See, e.g., Union of Orthodox Jewish Congregations of Am. v. Royal Food Distribs. LLC, 665 F.Supp.2d 434, 436 (S.D.N.Y. 2009) (“When the Court enters a default judgment, as regards liability it must accept as true all of the factual allegations of the complaint, but the amount of damages are not deemed true.”) (internal citations, alterations, and quotation marks omitted). As to damages, a district court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). This inquiry requires the district court to: (1) “determin[e] the proper rule for calculating damages on . . . a claim,” and (2) “assess[ ] plaintiff's evidence supporting the damages to be determined under this rule.” Id.
Federal Rule of Civil Procedure 55(b)(2) “allows but does not require” the district court to conduct a hearing on the damages amount. Bricklayers & Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (“[T]he court may conduct such hearings or order such references as it deems necessary and proper.”) (internal quotation marks and citation omitted); see also Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012). Plaintiff's submissions have not been contested and the submissions provide the information needed to determine Plaintiff's damages. As such, a hearing on the damages inquest is not necessary.
A. WBM's Liability Under the TVPRA
1. Statute of Limitations
The statute of limitations for the TVPRA is the later of “10 years after the cause of action arose” or “10 years after the victim reaches 18 years of age, if the victim was a minor at the time of the alleged offense.” 18 U.S.C. § 1595(c)(1)-(2). The trafficking offense at issue here occurred in 2007, when Plaintiff was 17 years old. Compl. ¶ 13. The offense thus occurred approximately 13 years before the filing of the Complaint, or 12 years after Plaintiff turned 18. Id. Because Plaintiff failed to file the Complaint within the 10-year period allotted under the statute, the suit was not timely under the statutory limitations. Nevertheless, Plaintiff is entitled to equitable tolling of the limitations period.
Equitable tolling “allows district courts to extend the statute of limitations beyond time of expiration as necessary to avoid inequitable circumstances.” Goodman v. Port Auth. of N.Y. & N.J., 850 F.Supp.2d 363, 381 (S.D.N.Y. 2012); see also Young v. United States, 535 U.S. 43, 49 (2002) (“It is hornbook law that limitations periods are customarily subject to equitable tolling”). Additionally, the legislative history for the TVPRA makes clear that Congress intended for the statute of limitations to be subject to equitable tolling. Hilao v. Est. of Marcos, 103 F.3d 767, 773 (9th Cir. 1996) (citing S. Rep. No. 102-249, at 11 (1991)). Whether to grant equitable tolly “is a discretionary ‘exercise of a court's equity powers.'” Doe v. United States, 76 F.4th 64, 71 (2d Cir. 2023) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).
Equitable tolling of the statute of limitations “is only appropriate in rare and exceptional circumstances, in which [a plaintiff] is prevented in some extraordinary way from exercising his rights.” Rankel v. Town of Somers, 999 F.Supp.2d 527, 540 n.22 (S.D.N.Y. 2014) (citing Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)). When considering whether equitable tolling is appropriate, a district court must consider “whether the person seeking application of the equitable tolling doctrine (1) has acted with reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.” Zerilli-Edelglass, 333 F.3d at 80 (internal quotations omitted). The Supreme Court has cautioned that the diligence prong requires only “reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653. And where a victim is unable to begin seeking redress for several years after the abuse ended due to fear and the psychological impact of that abuse, equitable tolling may still apply so long as the victim “began taking steps to vindicate her rights” as soon as she was able to. See Doe, 76 F.4th at 73.
Whether a plaintiff faced extraordinary circumstances depends on “the severity of the obstacle impeding compliance with a limitations period.” Doe, 76 F.4th at 72-73 (concluding that a factfinder could find that plaintiff faced extraordinary circumstances to invoke equitable tolling where she suffered sexual abuse and feared retaliation by defendant). “Among the extraordinary reasons that may justify equitable tolling of a statute of limitations is a defendant's efforts to threaten or retaliate against a plaintiff if she files a claim against him.” Id. (quoting Clark v. Hanley, No. 18-CV-1765 (JAM), 2022 WL 124298, at *4 (D. Conn. Jan. 13, 2022)). However, “generalized allegations of fear of retaliation” are not sufficient to establish extraordinary circumstances warranting equitable tolling. Clark, 2022 WL 124298, at *4 (quoting Davis v. Jackson, No. 15-CV-5359 (KMK), 2016 WL 5720811, at *11 (S.D.N.Y. Sept. 30, 2016)); cf Doe, 76 F.4th at 72 (noting that a showing of extraordinary circumstances could be made with a “specific and credible basis to fear retaliation” by the defendant).
Here, Nygard's history of retaliation, threats, and manipulation towards his victims create a credible basis for Plaintiff to have delayed in pursuing her rights and thus constitutes extraordinary circumstances justifying equitable tolling. See generally Compl. ¶¶ 64-86 (describing Nygard's silencing tactics including bribery, slashing tires, committing arson, and leveraging his wealth to sue and destroy the reputation of anyone who reports his crimes). The complaint alleges that Nygard had a history of using his financial resources, political power, influences, and threats of force to intimidate his victims including Plaintiff and prevent them from coming forward. Compl. ¶ 71. Nygard used various intimidation tactics against his victims, including threats to destroy his victims' careers, having his victims followed, engaging in murder-for-hire plots, hiring thugs to intimidate his victims, and threatening victims with death. Id. ¶¶ 66-80. The fact that the threats and intimidation tactics alleged in the Complaint are mostly attributed to Nygard does not pose a barrier to tolling these claims against WBM. See Jane W. v. Thomas, 354 F.Supp.3d 630, 635 (E.D. Pa. 2018) (“The existence of a justifiable fear of violent reprisal by potential defendants or defendants' allies can also toll the limitations period.”) (emphasis added). Although Plaintiff does not allege that all of these strategies were directly employed against her, she was aware of the tactics that Nygard had used and pleads sufficient facts from which to plausibly infer that she had a credible basis for believing that he could employ them against her if she pursued any claims. Cf. Clark, 2022 WL 124298, at *4-6 (finding an inmate's testimony that she feared retaliation and thus did not file a legal claim was uncredible where it was based on speculation that defendants intended to retaliate against her). Plaintiff alleges that she did not feel safe filing a claim against Nygard until after he was sued in a class action lawsuit and investigated by the Federal Bureau of Investigations. Compl. ¶ 69. Those actions occurred in 2020 and Plaintiff then exercised reasonable diligence to commence this action within a few months, on November 12, 2020. In short, Plaintiff has alleged extraordinary circumstances to justify equitable tolling and thus her claim is not time barred.
Jane Does Nos. 1-57 v. Nygard, et al., No. 20-CV-01288 (ER) (S.D.N.Y) (Complaint filed Feb. 2020).
Kim Barker & Catherine Porter, Fashion Mogul Peter Nygard to Step Down Amid Federal Raids, N.Y. Times, Dec. 15, 2020.
2. WBM Sexually Trafficked Plaintiff
In relevant part, section 1591(a) of the TVPRA makes it unlawful for one to knowingly,
in or affecting interstate or foreign commerce . . . recruit[], entice[], harbor[], transport[], provide[], obtain[], advertise[], maintain[], patronize[], or solicit[] by any means a person[] . . . knowing . . . or in reckless disregard of that fact, that means of force, fraud, coercion . . . or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act.18 U.S.C. § 1591(a). A “commercial sex act” is defined as “any sex act, on account of which anything of value is given to or received by any person.” 18 U.S.C. § 1591(e)(3). “Courts have consistently held that ‘anything of value' encompasses more than simply monetary exchanges.” United States v. Raniere, 384 F.Supp.3d 282, 318 (E.D.N.Y. 2019). The promise or prospect of obtaining an advantage in an acting career qualifies as “anything of value” for purposes of the commercial sex act requirement in the TVPRA. David v. Weinstein Co. LLC, 431 F.Supp.3d 290, 304 (S.D.N.Y. 2019) (citing Noble v. Weinstein, 335 F.Supp.3d 504, 515-16 (S.D.N.Y. 2018) (rejecting defendant's argument that “the ‘commercial sex act' element [was] absent because nothing of value was exchanged”)).
Plaintiff has established WBM's liability for violation of the TVPRA. See David, 431 F.Supp.3d at 303 (holding that TVPRA liability can apply to a producer in a case where he allegedly used fraud and force to entice an aspiring actress to engage in sex acts); see also Ardolf v. Weber, 332 F.R.D. 467, 474 (S.D.N.Y. 2019) (denying a photographer's a motion to dismiss where former male models brought action against the photographer alleging that they were sexually molested during photo shoots, where the photographer had power and influence to hire them for future lucrative jobs, in violation of TVPRA). As a preliminary matter, corporate entities can be held liable under the TVPRA. See S.Y. & C.S. v. Naples Hotel Co., 476 F.Supp.3d 1251, 1257 (M.D. Fl. 2020) (denying, in part, a motion to dismiss brought by a corporate defendant since plaintiff plausibly alleged that the corporate defendant benefitted from her sex trafficking); Doe 1 v. JPMorgan Chase Bank, N.A., No. 22-CV-10019 (JSR), 2023 WL 5317453, at *1 (S.D.N.Y. Aug. 18, 2023) (case involving TVPA claim against JP Morgan Chase Bank); see also 1 U.S.C. § 1 (establishing that, in the meaning of “any Act of Congress, unless the context indicates otherwise” the meaning of “person” includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”). Here, WBM lured Plaintiff, then 17-years old, from Canada to New York with the fraudulent promise of a potentially lucrative modeling career. See Decl. of Plaintiff (“Pl. Decl.”), Ex. 5 at ¶ 7, ECF No. 91; Compl. ¶¶ 50, 101. Plaintiff was enticed to New York under the guise of an opportunity to break into the highly competitive fashion modeling world something of great value to her with representation from a well-connected talent agency. Compl. ¶¶ 1, 7-8, 101. Through Baram the President, CEO, and sole member of WBM-WBM understood that it was enticing a minor to travel from a foreign country for the purpose of trafficking her to Nygard in order to gain its own advantage in the fashion and modeling world. Decl. of Greg Gutzler (“Gutzler Decl.”), Ex. 8 at ¶ 33, ECF No. 91.
Moreover, Jane Roe, another “victim” of Nygard, provided a declaration stating that Nygard routinely had modeling agents, like Baram, bring girls to his properties under the guise of legitimate modeling opportunities. See Decl. of Jane Roe (“Roe Decl.”), Ex. 13 at ¶ 3, ECF No. 94. Roe was with Baram at Nygard's Bahama's compound on multiple occasions. Id. ¶ 6. Under penalty of perjury, Roe stated that “it was apparent that Baram was friendly with Nygard and, was actively participating in Nygard's” pattern and practice of sexually exploiting young women. Id. ¶¶ 12-13. Roe attested that Baram was one of the modeling agents who presented Nygard with young women and she personally witnessed Baram bring young female models to Nygard on multiple occasions. Id. ¶¶ 4-6. In short, the Plaintiff's allegations as supported by her declaration and the declaration of Jane Roe establish WBM's liability for violation of the TVPRA.
B. Plaintiff's Damages
The TVPRA allows victims of sex trafficking to recover damages from the “perpetrator (or whoever knowingly benefits or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act [of trafficking]).” 18 U.S.C. § 1595(a). WBM “received significant financial and business benefits, including clients and influence in the female modeling industry,” including clients in exchange for facilitating and covering up Nygard's scheme. See Compl. ¶¶ 9, 102. Plaintiff can thus recover damages against WBM for violation of the TVPRA.
1. Compensatory Damages
Compensatory damages are awarded to a plaintiff to compensate them for an injury actually suffered as a result of a defendant's conduct. See Birdsall v. Coolidge, 93 U.S. 64, 64 (1876). Compensatory damages may include more than just “out-of-pocket costs and other monetary harms, but also such injuries as impairment of reputation, personal humiliation, mental anguish and suffering.” See Noonan v. Becker, No. 14-CV-4084 (LTS) (JLC), 2018 WL 1738746, at *4 (S.D.N.Y. Apr. 10, 2018) (quoting Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986)); Doe v. HRH Prince Abdulaziz Bin Fahd Alsaud, Saudi Oger Ltd., No. 13-CV-571 (RWS), 2017 WL 4541426, at *3 (S.D.N.Y. Oct. 10, 2017) (“Compensatory damages recoverable for sexual assault . . . include compensation for the injury itself, conscious pain and suffering including mental and emotional anxiety which can be based on the plaintiff's subjective testimony plus special damages, which need not be pleaded.”) (quotation marks & citations omitted). Emotional distress damages have also been recognized as a form of compensatory damages and are recoverable in a private cause of action under the TVPRA. See Gurung v. Malhotra, 851 F.Supp.2d 583, 594 (S.D.N.Y. 2012) (awarding plaintiff $500,00 for emotional distress under the TVPRA for the “barbaric treatment” plaintiff endured as a domestic worker).
Plaintiff claims a wide variety of harms resulting from the trafficking by WBM, the resulting rape by Nygard, and the forcible touching by Baram. In her Declaration, Plaintiff testifies, under the penalty of perjury, to the many ways her life was, and continues to be, impacted by the trauma she suffered from the rape and assaults. Pl. Decl. ¶ 46. Physically, Plaintiff suffers from permanent constipation and hemorrhoids as a result of Nygard's sodomization. Pl. Decl. ¶ 54. Plaintiff also begins “shaking uncontrollably to the point where [she] cannot hold a water glass” when she meets new people. Id. ¶ 55.
Following the attack, Plaintiff replayed the events in her mind, often daily. Id. ¶ 36. She became severely depressed, lost her will to live, was unable to practice self-care, withdrew from her friends and family especially her male relationships and was consumed by despair, fear, crippling sadness, shame, and a lack of self-worth. Id. ¶¶ 37, 38, 41. Plaintiff went from a “straight-A” student with college plans to failing out of high school after she stopped attending due to her mental state. See id. ¶39; Pl. Findings ¶ 66. Plaintiff attempted suicide twenty times during the six years after her trafficking. Pl. Decl. ¶ 42. After the rape, Plaintiff was unable to have physical or intimate relationships with men for six years. Id. ¶ 52. She developed vaginismus and still, quite frequently, experiences crippling pain and vivid flashbacks to her assault during sexual activity. Id. ¶ 53.
Vaginismus is “painful spasm[s] of the vagina due to involuntary contraction of the vaginal musculature, usually severe enough to prevent intercourse; the cause may be organic or psychogenic.” Dorland's Illustrated Medical Dictionary at 2047 (31st ed. 2007).
Plaintiff also states that she withdrew herself from friends and family, especially men, and to this day she is “unable to form or maintain any male friendships,” except with her fiance. Id. ¶¶ 38, 51. Plaintiff explains that her daily choices are impacted by her inability to be alone in a room with a man. Id. ¶ 47. Plaintiff, who now is an actress, cannot audition for or accept any roles involving intimacy, which she claims greatly limits her earning potential because 50-60% of acting auditions involve an intimacy scene. Id. ¶¶ 48-49. Plaintiff cannot be alone in an elevator with a man, cannot fly alone out of fear that she might have to sit next to a man, cannot work with a male agent, and cannot interview with men. Id. ¶¶ 47-48. Plaintiff has panic attacks if she unexpectedly finds herself in a situation where she is alone with a man. Id. ¶ 47. This response impacts her physically and emotionally, if she finds herself “alone in a room with a man, no matter how benign the situation may be, [she] ha[s] a panic attack, [she] lose[s] control of her breathing, [she] start[s] to shake uncontrollably, [her] heart beat increases until [it] is pounding in [her] chest, and [she] ha[s] to leave, if not flee the room.” Id.
Plaintiff currently makes approximately $75,000 a year as an actress but believes she could at least double her salary if she were able to pursue her full acting potential. Pl. Decl. ¶ 49.
Plaintiff's injuries are further supported by the sworn declaration of her psychotherapist Shannon Moroney. In 2020, Plaintiff began seeing Moroney, at which point she was diagnosed with severe Post-Traumatic Stress Disorder (“PTSD”), Generalized Anxiety Disorder (“GAD”), Major Depressive Disorder, and Anxiety. See Decl. of Shannon Moroney (“Moroney Decl.”), Ex. 14 at ¶¶ 7, 9-10, 12, ECF No. 91. According to Moroney, Plaintiff developed maladaptive, automatic dissociative mechanisms “to mitigate the discomfort and disturbance of her PTSD symptoms and anxiety.” Id. ¶ 8. Moroney explains that Plaintiff continues to suffer from PTSD, depression, and anxiety and will need regular, on-going therapy for the foreseeable future to overcome her symptoms. Id. ¶¶ 9-10, 13.
Plaintiff met the DSM-5 criteria for these disorders. Her PTSD was severe upon intake, scoring 76/80 on the PTSD checklist in the DSM-5. See Moroney Decl. ¶¶ 6-7. Plaintiff exhibited symptoms and reactions across the full spectrum of criteria, including recurrent, involuntary, and intrusive memories; traumatic nightmares; dissociative amnesia; avoidance of trauma-related thoughts, feelings, or external reminders; persistent inability to experience positive emotions and persistent negative beliefs and self-blame; exaggerated startle responses; and persistent negative emotions, including fear, horror, anger, guilt, and shame. Plaintiff scored a 21/21 on the GAD-7 at intake, indicating “severe, debilitating anxiety that contributed greatly to her inability to come forward about her victimization.” Id. ¶ 9. Plaintiff's diagnosis for major depressive disorder and anxiety also came with a 60/63 on the DASS-21. Id. ¶ 10.
Consistent with Plaintiff's testimony, Moroney reports that Plaintiff has primarily coped through isolation and avoidance. Id. ¶ 14. Maroney also states that the attack has affected Plaintiff's desire to have children because she experiences overwhelming anxiety about potentially passing her trauma to her child, her inability to trust her child in the care of others, and her fear of the world and her inability to protect her child from all of its harms. Id. ¶ 15.
Plaintiff's fiance, who also submitted a sworn declaration, further corroborates the physical and emotional harms suffered by Plaintiff. He confirms that Plaintiff's demeanor changed after the attack, no one saw her for several years, and she dropped out of school very suddenly with no explanation to her friends. See Decl. of John Doe (“John Doe Decl.”), Ex. 8 at ¶¶ 8-9, ECF No. 91. He explains that Plaintiff “attempted suicide many times,” and describes that Plaintiff becomes “panic stricken and cannot be alone with a man” other than himself. Id. ¶¶ 11-13. He also explains that Plaintiff's vaginismus causes her extreme pain when they are sexually intimate and that she still frequently has flashbacks to her trafficking and rape during their sexual activity. Id. ¶ 14.
Plaintiff requests $2,000,000-$3,000,000 in compensatory damages. See Compl. at 37. In light of Plaintiff's injuries, as well as the evidentiary support for those injuries, in the form of the declarations of Plaintiff's fiance, John Doe, and her therapist, Shannon Moroney, I respectfully recommend that Plaintiff be awarded $500,000 for compensatory damages for emotional distress and physical harm. “Courts in this Circuit and State have upheld large compensatory damage awards for sexual assault and rape victims, yet interestingly, such awards vary drastically-even where cases share similar facts.” Noonan, 2018 WL 1738746, at *5 (citing HRH Prince Abdulaziz, 2017 WL 4541426, at *4 (canvassing cases)). Although compensatory damage awards for sexual assault vary significantly, the cases from this Circuit illustrate that an award of $500,000 would be “fair and reasonable compensation in light of the evidence” presented by Plaintiff here. Id. at *6 (quotation marks omitted).
For example, in awarding $1,000,000 in compensatory damages to a plaintiff who was drugged and raped by a law enforcement officer after her arrest, the Court in Noonan v. Becker canvased several sexual assault cases in which the defendant was a private citizen. Noonan, 2018 WL 1738746, at *7 (discussing state and federal appeals court decisions upholding compensatory awards of $1,875,000 and $1,000,000 for sexual assault committed by private citizens). The plaintiff in Noonan, like here, was seeking compensatory damages for a single instance of sexual assault. Id. at *1. Following the sexual assault, the plaintiff in Noonan, like Plaintiff here, was diagnosed with depression, anxiety, and PTSD. Id. at *3. In Noonan, as occurred here, the plaintiff's daily life was also impacted after the attack, and she also expressed feeling paranoid and nervous about men in general and that she had reservations about having children because of her experience. Id.
In HRH Prince Abdulaziz, the plaintiff was awarded $1,250,000 in compensatory damages after the defendant drugged, repeatedly raped, and sodomized the plaintiff. See HRH Prince Abdulaziz, 2017 WL 4541426, at *1. Like Plaintiff here (see Pl. Decl. ¶ 45), the plaintiff in HRH Prince Abdulaziz suffered significant emotional harms, including diagnoses of complex PTSD, anxiety disorder, and “massive” depression which lasted over seven years. Id. at *2. The plaintiff in that case could not carry out her daily activities after the attack and attempted to take her own life. Id. Likewise, Plaintiff here attempted suicide over twenty times. Pl. Decl. ¶ 42. Similarly, the plaintiff in HRH Prince Abdulaziz described how the attack impacted her selfesteem, confidence, and she began to embrace solitude and social isolation to cope with her trauma. 2017 WL 4541426, at *2. Plaintiff, here, also described engaging in social isolation, including dropping out of high school, limiting her career opportunities, and avoiding public spaces and situations where she ran the risk of being alone with a man. See Pl. Decl. ¶¶ 39, 4749.
The $1,250,000 award consisted of $850,000 for past pain and suffering and $400,000 for future pain and suffering. HRH Prince Abdulaziz, 2017 WL 4541426, at *1.
Another illustrative case is Riascos-Hurtado v. Raines, where two female inmates were each awarded $1,500,000 in compensatory damages after a series of sexual assaults in a federal jail by a correctional counselor. See 422 F.Supp.3d 595, 597 (E.D.N.Y. 2019). In that case, the defendant leveraged his position of power to coerce two female inmates to perform repeated sexual acts, including raping one of the inmates twice. Id. at 599-601. Both inmates suffered from severe PTSD, had anxiety and flashbacks triggered by men in uniforms and enclosed spaces, and were unable to maintain intimate relationships with men after their release from prison. Id. at 602-03. Similarly, Plaintiff here describes experiencing flashbacks when left alone with men, avoiding situations where she could be alone with a man, and an inability to maintain intimate relationships with men. Pl. Decl. ¶¶ 47-48; John Doe Decl. ¶ 13. Plaintiff also experienced physical pain that has limited her ability to have intimate relationships with men, as experienced by the plaintiffs in Riascos-Hurtado. Pl. Decl. ¶ 53; John Doe Decl. ¶ 14.
Although Plaintiff has demonstrated that she suffers from injuries similar to those of the plaintiffs in the cases discussed above, I recommend an award lower than the amounts awarded in those cases for several reasons. First, in Riascos-Hurtado and HRH Prince Abdulaziz, where the awards exceeded $1,000,000, the plaintiffs had suffered multiple sexual assaults, not a single rape. Second, although Plaintiff has offered evidence to support a finding that she suffered significant emotional harm as a result of the trafficking and subsequent rape and forcible touching, the defendant here (WBM) was not the individual who perpetrated the rape. WBM was responsible for the trafficking that ultimately provided Nygard the opportunity to rape Plaintiff. But it is not clear from the evidence provided by Plaintiff what portion of her injuries is attributable to WBM's conduct versus the portion that derives from the rape committed by Nygard. And finally, unlike the Plaintiff in Noonan, who was awarded $1,000,000 in compensatory damages, Plaintiff did not submit any of her own medical records to further substantiate her injuries. And nor did Moroney, Plaintiff's psychotherapist, include any medical records or contemporaneous treatment notes as exhibits to her declaration. See Noonan, 2018 WL 1738746, at *3 (noting that the plaintiff introduced certified medical records, including for Noonan's psychiatric treatment, and an expert psychologist's evaluation of Noonan, to support her damage request). For these reasons, I recommend an award of compensatory damages lower than the amount in the cases discussed above. I thus recommend that Plaintiff be awarded $500,000 in compensatory damages.
2. Punitive Damages
Plaintiff requests $2,000,000-$3,000,000 in punitive damages as well. See Compl. at 37. Punitive damages are intended to punish the wrongdoer and deter others. Mathie v. Fries, 121 F.3d at 808, 817 (2d Cir. 1997). The TVPRA permits a plaintiff to recover punitive damages. See, e.g., Abafita v. Aldukhan, No. 16-CV-6072 (RMD) (SDA), R&R adopted, 2019 WL 4409472, at *3 (S.D.N.Y. Sept. 16, 2019) (citing Ditullio v. Boehm, 662 F.3d 1091, 1094 (9th Cir. 2011) (holding that punitive damages are available under 18 U.S.C. § 1595 because it creates a cause of action that sounds in tort and punitive damages are available in tort actions under the common law)).
To determine a punitive damages award, courts are guided by three factors: “(1) the degree of reprehensibility of the tortious conduct; (2) the ratio of punitive damages to compensatory damages; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases.” Patterson v. Balsamico, 440 F.3d 104, 120 (2d Cir. 2006) (internal citations omitted). As the Supreme Court has explained, “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process,” and “[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” See Exxon Shipping v. Baker, 554 U.S. 471, 501 (2008) (alteration in original).
The reprehensibility of the tortious conduct is “perhaps the most important” factor in determining an award of punitive damages. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996). The Supreme Court has identified certain aggravating factors that are associated with particularly reprehensible conduct, including “(1) whether a defendant's conduct was marked by violence or presented a threat of violence, (2) whether a defendant's conduct evinced trickery or deceit as opposed to mere negligence, and (3) whether the record supports a finding of intentional malice.” Jennings v. Yurkiw, 18 F.4th 383, 390 (S.D.N.Y. 2021) (citing Gore, 517 U.S. at 575-76).
The conduct by WBM here was sufficiently reprehensible to warrant punitive damages. Through Baram, WBM lured a minor from a foreign country to New York City under the guise of making her modeling and acting dreams come true. All the while, WBM, through Baram, knew that they were delivering Plaintiff to Nygard to be raped by him. Pl. Findings ¶¶ 133-35. And as a result of WBM's assistance, Plaintiff was drugged, sodomized, and raped by Nygard. Id. ¶ 133. This conduct was intentional and not merely negligent. See Roe Decl. ¶¶ 5-6, 11-13 (explaining that Baram knew Nygard well and was actively participating in Nygard's scheme of luring in women for Nygard's own sexual gratification). Further, the significant and lasting trauma that Plaintiff suffered further buttresses a finding that the conduct was particularly reprehensible. See generally, Pl. Decl.
In the Second Circuit, multiple courts have awarded punitive damages in an amount equal to, or less than, an award of compensatory damages, where the conduct concerned a sexual assault. See Noonan, 2018 WL 1738746, at *8; see Mathie, 121 F.3d at 818 (awarding punitive damages in a less than one-to-one ratio with compensatory damages of $250,000 and punitive damages of $200,000); HRH Prince Abdulaziz, 2017 WL 4541426, at *1 (punitive damages had a less than one-to-one ratio with compensatory damages of $1,250,000 and punitive damages of $1,000,000); Amador v. Galbreath, No. 10-CV-6702L, 2013 WL 1755784, at *3 (W.D.N.Y. Apr. 24, 2013) (one-to-one ratio of punitive to compensatory, at $250,000 each); Ortiz v. Lasker, Jr., No. 08-CV-6001L, 2010 WL 3476017, at *2 (W.D.N.Y. Aug. 30, 2010) (one-to-one ratio of punitive to compensatory, at $250,000 each).
The third factor a comparison to penalties imposed in comparable cases also supports a punitive award equal to the amount of compensatory damages. Punitive damages in comparable cases can reach $1,000,000. See HRH Prince Abdulaziz, 2017 WL 4541426, at *7 (awarding $1,000,000 after assessing the extraordinarily reprehensible conduct of the rape of two women and the indifference to the brutality of the act); Noonan, 2018 WL 1738746, at *1-2 (awarding, after default, $1,000,000 punitive damages at a one-to-one ratio with compensatory damages to a plaintiff raped by a police officer who implicitly threatened to harm her legal case if she did not comply). Here, a punitive damages award equal to the award of compensatory damages is still significantly less than the amount of punitive damages awarded in cases involving similar harms resulting from sexual assaults.
Lastly, the court must consider WBM's financial circumstances in determining an award of punitive damages. Patterson, 440 F.3d at 121. However, the burden to show that a defendant's financial circumstances warrant a reduction in the amount of punitive damages lies with the defendant. Id. at 122. WBM did not provide any information related to its financial status given its failure to respond to Plaintiff's inquest submissions or otherwise retain counsel to represent it in this action. In short, given the reprehensibility of the conduct at issue and the cases concluding that a one-to-one ratio of punitive to compensatory damages is appropriate, I recommend an award of punitive damages in the amount of $500,000. Such an award is fair and reasonable in this case.
In March 2024, Baram submitted to the Court statements about his personal financial condition and claimed that he has no assets. See ECF No. 177. However, WBM is the remaining defendant here and WBM never provided any information concerning its financial condition.
C. Attorney's Fees and Costs
The TVPRA provides for an award of reasonable attorney's fees to a successful plaintiff. See 18 U.S.C. § 1595(a). Plaintiff was represented by DiCello Levitt & Gutzler and The Haba Law Firm. Gutzler Decl.; Decl. of Lisa Haba (“Haba Decl.”) Ex. 4, ECF No. 91. Plaintiff seeks an award of attorney's fees in the amount of $260,747.00 for 342.2 hours of work in this case. See Pl. Findings ¶ 144. In support of Plaintiff's application, DiCello Levitt & Gutzler submitted a statement of fees showing the date on which the services were performed, the attorney responsible for each task and their level of experience, the time expended, and a description of the services completed. See ECF No. 98. The Haba Law Firm submitted a similar statement of fees showing the date on which the services were performed, the time expended, and a description of the services completed. See ECF No. 97. Both Gutzler and Haba represent that the time records were maintained contemporaneously. See Gutzler Decl. ¶ 13; Haba Decl. ¶ 16.
DiCello Levitt & Gutzler expended 282.5 hours and The Haba Law Firm expended 59.7 hours. See Gutzler Decl. ¶ 14; Haba Decl. ¶ 16.
An award of attorneys' fees is typically determined using the lodestar approach, or “the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v. Metro-North R.R., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 193 (2d Cir. 2008)); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010). “The reasonable hourly rate is the rate a paying client would be willing to pay,” bearing 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. 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, courts may consider “rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district.” Id. Additionally, “[t]he 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). A court should also consider other case specific factors like the “level of skill required to perform the legal service properly,” “the novelty and difficulty of the questions,” and “the amount involved in the case and the results obtained.” See Abafita, 2019 WL 6735148, at *10 (quoting Arbor Hill, 522 F.3d at 187).
“After establishing the appropriate hourly rate, a court must determine how much time was reasonably expended in order to arrive at the presumptively reasonable fee.” Villanueva v. 179 Third Ave. Rest Inc., 500 F.Supp.3d 219, 241 (S.D.N.Y. 2020), R&R adopted, 2021 WL 2139441 (S.D.N.Y. May 26, 2021). In assessing whether the number of hours billed by the attorney is reasonable, courts consider “whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (citation omitted). Plaintiff bears the burden to produce “contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.” Scott v. City of N.Y., 626 F.3d 130, 133-134 (2d Cir. 2010) (citation omitted); see also Fisher v. S.D. Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020). District courts exercise “considerable discretion” in awarding attorneys' fees. See D.B. ex rel. S.B. v. N.Y. City Dep't of Educ., No. 18-CV-7898 (AT) (KHP), 2019 WL 6831506, at *1 (S.D.N.Y. Apr. 22, 2019) (citation and internal quotation marks omitted), R&R adopted, 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019); see also McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 420 (2d Cir. 2010); Arbor Hill, 522 F.3d at 190. A court “reviewing fee petitions must exclude hours that are excessive, redundant, or otherwise unnecessary, allowing only those hours that are reasonably expended.” Hernandez v. Berlin Newington Assocs., LLC, 699 Fed.Appx. 96, 97 (2d Cir. 2017) (summary order) (internal quotation marks, and alterations omitted); see Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (“In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours.”) (citation omitted).
1. Reasonable Hourly Rate & Hours Expended
By virtue of the default judgment against WBM, Plaintiff has prevailed on her TVPRA claims and is thus entitled to attorney's fees. See MSC Mediterranean Shipping Co. Holding S.A. v. Forsyth Kownacki LLC, No. 16-CV-8103 (LGS), 2017 WL 1194372, at *1 (S.D.N.Y. Mar. 30, 2017) (“Plaintiff . . . is the prevailing party by virtue of the Default Judgment entered in its favor.”) (internal quotation marks omitted).
DiCello Levitt & Gutzler is seeking fees on behalf of Frank Amanat, Greg Gutzler, Megan McKenzie, Carmel Kappus, Justin Hawal, Lisa Lucas, and Joe Donohue. See ECF No. 98. Frank Amanat, a partner at the firm, requests a fee of $975 per hour. Id. Greg Gutzler, another partner, seeks a fee of $1,095 per hour. Id. Carmel Kappus and Justin Hawal each seek a fee of $575 per hour. Id. Megan McKenzie requests a fee of $545. Id. Lisa Lucas seeks a fee of $350 per hour. Id. Joe Donohue requests a fee of $300 per hour. Id. The Hama Law Firm is also seeking fees on behalf of Lisa Haba, a solo practitioner. See ECF No. 97. Lisa Haba seeks a fee of $550 per hour. Haba Decl. ¶ 18.
Gutzler's declaration did not define the job title or seniority of any of the attorney's besides himself and Amanat, who are marked as Partners (“PT”). The rest of the attorneys have a professional level of “PR” but the meaning of “PR” is not provided. See ECF No. 98.
Gutzler seeks to justify the requested rates for the attorneys at his firm by pointing at cases where courts approved rates as high as $1,380 per hour. See Gutzler Decl. ¶ 148, Ex. A-B. However, the cases Gutzler points to involved far more complex litigations than the instant matter. Specifically, Gutzler points to cases involving class-action suits that relied on a “percentage-of-recovery” reimbursement method for complex claims. See Gutzler Decl. Ex. A-B (citing In re BRF S.A. Sec. Litig. No. 18-CV-2213 (PKC), 2019 WL 1287544 (S.D.N.Y. May 3, 2019)); Pl.'s Memo. in Support of Their Mot. for Attorneys' Fees & Expenses and Case Contribution Award for Class Representative, Cunningham v. Cornell Uni., No. 16-CV-6525 (PKC) (S.D.N.Y. Oct. 23, 2020) (“Cunningham Memo.”). In In re BRF S.A. Securities Litigation, the plaintiff brought a complex class-action against the defendant, a food processor and poultry exporter headquartered in Sao Paulo, Brazil, where the plaintiff settled for $40,000,000 on behalf of the class. 2019 WL 1287544, at *1-2. In Cunningham, the class was among the first-ever cases filed against universities for fiduciary breaches due to excessive fees and imprudent investments, which necessarily included unprecedented arguments. See Cunningham Memo. at 1. The required skill, time, and the resultant settlement in those cases does not support an award of similar hourly rates here. This case raised a relatively simple fact pattern, did not involve complex legal issues, did not require particular or specialized expertise, and was disposed of through default judgment after WBM failed to retain an attorney and otherwise defend the action.
In Kortright Cap. Partners LP v. Investcorp Inv. Advisers Ltd., the court approved an hourly rate of $1,200, but the court acknowledged that the rate was on the “high end of the spectrum for hourly rates approved in this district for partners of New York City law firms.” 392 F.Supp.3d 382, 407-08 (S.D.N.Y. 2019); see also Themis Cap. v. Dem. Rep. Congo, No. 09-CV-1652 (PAE), 2014 WL 4379100, at *7 (S.D.N.Y. Sept. 4, 2014) (observing that “partner billing rates in excess of $1000 an hour[] are by now not uncommon in the context of complex commercial litigation”); accord Tessemae's LLC v. Atlantis Cap. LLC, 2019 WL 2635956, at *4 (S.D.N.Y. June 27, 2019) (collecting cases supporting reasonableness of “hourly rates ranging from $250 to $1260 per hour[] for attorneys' work on a commercial litigation matter”). And the court in Kortright noted that the hourly rates requested for associate work between $555 and $980 per hour exceeded the “upper bound of what other judges in this district have approved” for non-partner work at large New York City law firms. Id. at 408 (citing Vista Outdoor Inc. v. Reeves Fam. Tr., No. 16-CV-5766, 2018 WL 3104631, at *6; Themis Cap., 2014 WL 4379100, at *7-8). The court instead approved an hourly rate of $650 for associates. Id.
The rates requested from the attorneys of DiCello Levitt & Gutzler rival the rates requested for partners at large New York City law firms. But the firm is a mid-sized law firm and some of the attorneys who billed time on this case are in Cleveland, not New York City.Gutzler Decl. ¶ 18. Although Gutzler's Declaration states that the attorneys from DiCello Levitt & Gutzler are sophisticated and experienced in complex TVPRA claims, Gutzler does not discuss or otherwise explain the respective experience of each individual attorney who worked on the case. Regardless, this matter resulted in a default judgment, so Plaintiff's attorneys did not have to litigate the merits of Plaintiff's TVPRA claims.
In Gutzler's Declaration, he mentions both New York-based and Cleveland-based attorneys but does not specify which attorneys are based in New York or Ohio. Gutzler Decl. ¶¶ 11-12. The only locations identified are for Gutzler (New York), Amanat (New York), and Hawal (Cleveland) because of the addresses provided on their filings with the Court. See Pl. Findings.
In other cases that involved claims under the TVPRA, Courts in this District have awarded hourly rates of $450 for senior attorneys and $250 for junior attorneys. Abafita, 2019 WL 4409472, at *3 (stating that “the hourly rates of $450 per hour for senior attorneys and $250 per hour for junior attorneys are within the ranges typically awarded in this District.”); see also Gurung, 851 F.Supp.2d at 597 (“Courts in this District have determined in recent cases that the range of appropriate fees for experienced civil rights and employment law litigators is between $250 and $450 [per hour].”). In light of the limited information provided for each attorney's experience, the fact that some attorneys worked from offices outside of New York, and given that the case resolved after a default, I recommend an award of the following rates for each attorney from DiCello Levitt & Gutzler: Greg Gutzler $650; Frank Amanat $450; Carmel Kappus $300; Justin Hawal $300; Megan McKenzie $300; Lisa Lucas $300; and Joe Donohue $300.
Haba, a solo practitioner located in Florida, seeks an hourly rate of $550. Haba Decl. ¶ 18. Haba has been practicing law since 2010 and has specific experience with TVPRA, sexual battery, and human trafficking claims. Id. ¶¶ 17-18. The Second Circuit has cautioned against reducing an attorney's hourly fee merely because the attorney is a solo practitioner. See Porzig v. Dresdner, Kleinwort, Benson, N. America LLC, 497 F.3d 133, 143 n.6 (2d Cir. 2007) (“[I]t is long established that courts should not automatically reduce the reasonable hourly rate based solely on an attorney's status as a solo practitioner”) (internal quotations and citations omitted). Looking at awards in this Circuit, solo practitioners are “generally awarded between $300 and $400 per hour.” See Linde v. Arab Bank, PLC, No. 04-CV-2799 (BMC) (PK), 2023 WL 9232942, at *6 (E.D.N.Y. Nov. 28, 2023) (citing Avedana v. Casa Ofelia's Bakery LLC, No. 20-CV-02214 (DG)(AKT), 2021 WL 4255361, at *14 (E.D.N.Y. Aug. 19, 2021), R&R adopted, No. 20-CV-02214 (DG)(AKT), 2021 WL 4248857 (E.D.N.Y. Sept. 17, 2021) (collecting cases)). I thus recommend awarding an hourly rate of $400 for Haba based on Haba's experience in this specialized area of the law. Haba Decl. ¶¶ 17-18.
Plaintiff's counsel seeks compensation for a total of 342.2 hours. A review of those hours indicates that the time expended was reasonable and necessary. The attorneys on the case billed for time spent drafting the complaint, opposing Baram's motion to dismiss, preparing for and participating in conferences before Judge Ramos, preparing and submitting numerous letter motions, moving for sanctions, and preparing for a settlement conference. See Gutzler Decl., Ex. C; Haba Decl., Ex. D. The contemporaneous records do not show redundant or unnecessary billing. See id. And the time entries did not include block-billing or vague descriptions of the work rendered. Id. While Amanat, a partner, was initially the only attorney handling this matter, the billing records indicate that he subsequently delegated work to lower billing attorneys who account for nearly half of the total hours billed by the firm. Id. Additionally, counsel was able to leverage existing investigative work on Nygard's sex trafficking venture that was previously conducted by the firm and was not billed to this case. See Gutzler Decl. ¶ 151. And, Plaintiff's counsel sought to resolve this case efficiently through motion practice and the voluntary dismissal of Baram before discovery took place. See ECF No. 76.
Given the discussed reductions in hourly rates and the reasonableness of the hours billed, I recommend awarding Plaintiff $142,570 in attorneys' fees, as calculated below.
Individual
Rate Requested
Rate Recommended
Hours Requested
Hours Recommended
Total Recommended Award
Lisa Haba
$550
$400
59.7
59.7
$23,880
Frank Amanat
$975
$450
97.0
97.0
$43,650
Greg Gutzler
$1,095
$650
55.4
55.4
$36,010
Carmel Kappus
$575
$300
20.9
20.9
$6,270
Justin Hawal
$575
$300
94.5
94.5
$28,350
Megan McKenzie
$545
$300
5.0
5.0
$1,500
Lisa Lucas
$350
$300
8.8
8.8
$2,640
Joe Donohue
$300
$300
0.9
0.9
$270
2. Costs
Plaintiff states that the TVPRA provides for the recovery of litigation costs and expenses to prevailing plaintiffs. See Compl. ¶ 142. While the TVPRA does not explicitly include for a recovery of “costs,” 18 U.S.C. § 1595(a), that should not impede Plaintiff's ability to recover reasonable costs because there is a “presumption that prevailing parties are entitled to costs.” See Marx v. Gen. Revenue Corp., 568 U.S. 371, 376 (2013) (internal quotations omitted); see also Fed. R. Civ. P. 54(d)(1) (“Unless a federal statute, these rules, or a court order provides otherwise, costs other than attorney's fees should be allowed to the prevailing party.”).
Costs may include “reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (internal quotations and citations omitted). Costs can also include filing fees and costs associated with service of process. See Rosenda v. Everbrighten Inc., No. 13-CV-7256 (JGK) (FM), 2015 WL 1600057, at *9 (S.D.N.Y. 2015) (citing United States. ex rel. Evergreen Pipeline Const. Co. v. Merritt Meridian Const. Corp., 95 F.3d 153, 172 (2d Cir. 1996)). However, costs associated with computerized research, such as Westlaw fees, are viewed as a substitute for the attorney's time and are not necessarily a separate and recoverable cost. See Merritt Meridian Const. Corp., 95 F.3d at 173. Additionally, “there is no provision for a prevailing party to be awarded the cost of its investigator as part of an award of costs.” J&J Sport Prods., Inc. v. Schrader Rest. Corp., 485 F.Supp.2d 422, 424 (S.D.N.Y. 2007). Pretrial transcript fees are also typically excluded from costs. Oscar Gruss & Sons v. Lumbermens Mut. Cas. Co., 46 F.R.D. 635, 642 (S.D.N.Y. 1969).
Plaintiff seeks $1,363.58 in costs. Pl. Findings ¶ 153. That amount includes $169 for service of process and $75 for a skip trace search to locate Baram in order to serve him. See ECF Nos. 97-98. Those costs are awardable. See Rosena, 2015 WL 1600057, at *9 (awarding service of process costs, including process server expenses). Plaintiff also seeks $500 for the cost of the declaration by Plaintiff's therapist, filed in conjunction with Plaintiff's inquest submissions. See ECF No. 98. That cost is also recoverable. See LeBlanc-Sternberg, 143 F.3d at 763 (awarding costs for fees typically passed to clients); Cf. Addison v. Gordon, 338 F.R.D. 577, 579 (S.D.N.Y. 2021) (finding an hourly rate of $500 per hour a reasonable rate for a treating physician retained as an expert, to prepare for and take a deposition to support the plaintiff's injuries).
Plaintiff also seeks $465.40 for research expenses, the majority of which was for Westlaw. See ECF No. 98. Such costs are not recoverable. See Merritt Meridian Const. Corp., 95 F.3d at 173 (denying costs for online research). Additionally, Plaintiff seeks $144.18 for transcript fees. See ECF No. 97. This cost is not properly awarded either. See Oscar Gruss & Sons, 46 F.R.D. at 642 (stating that pretrial transcripts should be excluded from costs).Finally, Plaintiff seeks an award of $10 for a Certificate of Good Standing from the Supreme Court of Ohio. See ECF No. 98. This cost is not recoverable. See Tanzini v. Marine Midland Bank, 978 F.Supp. 70, 85 (N.D.N.Y. 1997) (denying a plaintiff's request for reimbursement for a certificate of good standing).
In sum, I recommend an award of costs of $774.
CONCLUSION
For the reasons set forth above, I recommend that Plaintiff be awarded $1,000,000, comprised of $500,000 in compensatory damages and $500,000 in punitive damages. Additionally, I recommend awarding Plaintiff attorneys' fees in the amount of $142,570 and costs in the amount of $774. Plaintiffs are directed to serve a copy of this Report and Recommendation on Defendant and file proof of service of the same on the docket by no later than May 20, 2024.
Respectfully submitted, PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Edgardo Ramos. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).