Opinion
1:18-cv-04023 (LGS) (SDA)
03-15-2023
Richard Rosario, Plaintiff, v. City of New York et al., Defendants.
TO THE HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, United States Magistrate Judge.
Before the Court is the motion of Plaintiff Richard Rosario (“Plaintiff” or “Rosario”), pursuant to 42 U.S.C. § 1988, for attorneys' fees and costs. (See Pl.'s Not. of Mot., ECF No. 508.) For the reasons set forth below, I respectfully recommend that Plaintiff's motion be GRANTED IN PART and DENIED IN PART, and that Plaintiff be awarded attorneys' fees and costs as set forth in the Conclusion below.
BACKGROUND
Rosario brought this action seeking damages from the City of New York (the “City”) and six New York City Police Department (“NYPD”) officers for his alleged wrongful conviction and imprisonment for murder. See Rosario v. City of New York, No. 18-CV-04023 (LGS), 2019 WL 4450685, at *1 (S.D.N.Y. Sept. 16, 2019). In 2016, after nearly twenty years in prison, the New York state court vacated Rosario's conviction, and the Bronx County District Attorney (“DA”) dismissed his indictment. See id. Rosario then filed an action in state court, which was removed to this Court on May 4, 2018, against the City and NYPD officers Sergeant Edward Monks (“Monks”), Detective Charles Cruger (“Cruger”), Detective Joseph Fortunato (“Fortunato”), Detective Richard Martinez (“Martinez”), Detective Irwin Silverman (“Silverman”) and Detective Gary Whitaker (“Whitaker”) (collectively, the “Individual Defendants”), alleging: (i) five federal claims under 42 U.S.C. § 1983, for malicious prosecution, denial of a fair trial, failure to intervene and civil rights conspiracy against the Individual Defendants, and supervisory liability against Defendant Monks, and (ii) two state law claims for malicious prosecution against the Individual Defendants and respondeat superior liability against the City. See id.
See Not. of Removal, ECF No. 1.
Rosario also had alleged Monell claims, as well as state law claims for intentional and negligent infliction of emotional distress and negligence, and claims under the New York Constitution, but he voluntarily dismissed those claims before the Court's decision on Defendants' motion for judgment on the pleadings that is discussed below. See Rosario, 2019 WL 4450685, at *1 n.1.
On December 11, 2018, Defendants filed a motion for judgment on the pleadings. (See Defs.' 12/11/18 Not. of Mot., ECF No. 61.) In an Opinion and Order, dated September 16, 2019, the Court dismissed all claims against Defendant Monks and dismissed two Counts of the Complaint, but otherwise denied Defendants' motion. See Rosario, 2019 WL 4450685, at *8-9.
The discovery phase of this case was atypical of many Section 1983 cases in its scope and breadth. The parties took a combined 34 depositions, including depositions of non-party witnesses. (See Freudenberger Decl., ECF No. 510, ¶ 10.) There were over 40,000 pages of documents reviewed, including documents from the post-conviction litigation and from the Bronx County DA's office, as well as over 100 videos reviewed. (See id. ¶¶ 7, 13; 10/5/18 Status Rpt., ECF No. 46; 11/19/18 Status Rpt., ECF No. 57; 1/3/19 Status Rpt., ECF No. 74; 4/3/19 Status Rpt., ECF No. 95; 5/31/19 Status Rpt., ECF No. 116.) In addition, discovery from eyewitnesses, psychiatric and neuropsychological experts was conducted. (See 9/27/19 Status Rpt., ECF No. 151.)
On January 10, 2020, Defendants filed a motion for summary judgment. (See Defs.' 1/10/20 Not. Of Mot., ECF No. 166.) In his memorandum of law in opposition, Rosario voluntarily dismissed his claims against Defendant Fortunato. See Rosario v. City of New York, No. 18-CV-04023 (LGS), 2021 WL 199342, at *1 (S.D.N.Y. Jan. 20, 2021). In an Opinion and Order, dated January 20, 2021, the Court granted summary judgment as to the § 1983 malicious prosecution claim and all claims against Defendant Silverman, except the failure to intervene claim, and otherwise denied Defendants' motion. See id. In the Opinion and Order, the Court clarified the surviving claims as follows: Count Two, denial of a right to a fair trial against Defendants Whitaker, Cruger and Martinez; Count Three, failure to intervene, against Defendants Whitaker, Cruger, Martinez and Silverman; Count Seven, New York malicious prosecution, against Defendants Whitaker, Cruger and Martinez; and Count Ten, respondeat superior, against Defendant City of New York, for the state tort of malicious prosecution. See id at *14.
Prior to trial, the parties briefed, and the Court decided, among others, motions regarding preclusion of expert testimony, see Rosario v. City of New York, No. 18-CV-04023 (LGS), 2021 WL 1930293 (S.D.N.Y. May 13, 2021); and in limine motions, see Rosario v. City of New York, No. 18-CV-04023 (LGS), 2021 WL 9455782 (S.D.N.Y. Nov. 23, 2021), opinion clarified, 2022 WL 3098305 (S.D.N.Y. Aug. 4, 2022).
Defendant Silverman died in December 2021 and the claims against him were voluntarily dismissed. (See Suggestion of Death, ECF No. 328; 12/20/21 Mem. End., ECF No. 333.)
The trial in this action was rescheduled multiple times due to challenges related to the COVID-19 pandemic. (See 1/27/21 Order, ECF No. 195; 5/11/21 Order, ECF No. 228; 12/2/21 Order, ECF No. 310; 1/3/22 Order, ECF No. 358; 1/7/22 Order, ECF No. 360; 3/17/22 Order, ECF No. 371.) This required Plaintiff's counsel to spend a substantial number of hours preparing for trial multiple times. (See Freudenberger Decl. ¶ 19.)
A jury trial commenced on July 25, 2022 and took a total of ten trial days (i.e., July 25 to 26, August 1 to 4 and August 8 to 11, 2022). (See Trial Trs., ECF Nos. 486, 488, 490, 492, 494, 496, 498, 500, 502, 504.) On August 11, 2022, the jury returned a verdict in favor of Rosario against the City and Defendant Whitaker, but not Defendants Cruger and Martinez. (See Verdict, ECF No. 479.) The jury found that Defendant Whitaker caused Rosario to be denied his constitutional rights to due process and a fair trial by fabricating evidence, withholding material favorable evidence and/or using a suggestive identification procedure, and that Rosario was maliciously prosecuted by Defendant Whitaker. (See id. at 1-2.) The jury also found that Rosario was maliciously prosecuted by the City. (See id. at 2.) The jury awarded Rosario $5,000,000.00 in damages. (See id. at 3.)
On October 7, 2022, Plaintiff filed the motion that is now before the Court seeking attorneys' fees and costs in the total amount of $4,239,510.99. (See Pl.'s Mem. at 1.) In support of the motion, Plaintiff filed a memorandum of law and supporting declarations from co-lead counsel. (See Pl.'s Mem.; Freudenberger Decl.; Brustin Decl., ECF No. 511.) On October 11, 2022, Judge Schofield referred the motion to me for a Report and Recommendation. (See Order of Ref., ECF No. 512.) On November 15, 2022, Defendants filed their memorandum and declaration in opposition. (See Defs.' Opp. Mem., ECF No. 517; Faddis Decl. Opp., ECF No. 518.) On December 2, 2022, Plaintiff filed a reply memorandum. (See Pl.'s Reply Mem., ECF No. 521.)
The $4,239,510.99 sought consists of “an award of $3,833,900.00 in attorney's fees on the merits, $6,570.00 in fees for travel, and an additional $115,240.00 for preparing the attorney's fees petition for a total of $3,955,710, as well as $283,800.99 in compensable expenses.” (See Pl.'s Mem., ECF No. 509, at 1.)
Pursuant to Rule 54(d)(2)(D) of the Federal Rules of Civil Procedure, a district judge “may refer a motion for attorney's fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.” Fed.R.Civ.P. 54(d)(2).
LEGAL STANDARDS
The Civil Rights Attorney's Fees Awards Act of 1976 authorizes district courts to award reasonable attorneys' fees to prevailing parties in civil rights litigation. See 42 U.S.C. § 1988; see also Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 186 (2d Cir. 2008). “The purpose of § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).
“A ‘reasonable' fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.” Restivo v. Hessemann, 846 F.3d 547, 589 (2d Cir. 2017) (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010)). 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.'” Millea, 658 F.3d at 166 Id. (citing Perdue, 559 U.S. at 542 and Arbor Hill, 522 F.3d at 183). 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 (citations omitted; emphasis in original). “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Torres v. City of New York, No. 18-CV-03644 (LGS), 2020 WL 4883807, at *2 (S.D.N.Y. Aug. 20, 2020) (quoting Hensley, 461 U.S. at 437).
“Once the lodestar is calculated, it may be adjusted only [ ] ‘when it does not adequately take into account a factor that may properly be considered in determining a reasonable fee.'” Ekukpe v. Santiago, No. 16-CV-05412 (AT), 2020 WL 1529259, at *2 (S.D.N.Y. Mar. 31, 2020) (quoting Millea, 658 F.3d at 167). “The Second Circuit has instructed, however, that ‘such adjustments are appropriate only in rare circumstances,' and ‘a court may not adjust the lodestar based on factors already included in the lodestar calculation itself,' but rather ‘only by factors relevant to the determination of reasonable attorneys' fees that were not already considered in the initial lodestar calculation.'” Id. (quoting Millea, 658 F.3d at 167.); see also Lilly v. City of New York, 934 F.3d 222, 231 (2d Cir. 2019) (“Factors that are already subsumed in the lodestar calculation cannot be used to enhance or cut the lodestar amount.”).
“The 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. . . [s]o 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.; see also Restivo, 846 F.3d at 589 (“trial courts need not, and indeed should not, become green-eyeshade accountants”).
DISCUSSION
As the prevailing party, the Court finds that Plaintiff is entitled to reasonable attorneys' fees and costs. Defendants do not appear to dispute Plaintiff's entitlement to fees, but have challenged Plaintiff's requested rates and hours worked as excessive or inappropriate. (See Defs.' Opp. Mem. at 3-19.)
I. Reasonable Hourly Rates
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 calculating a reasonable rate, the court must “bear in mind all of the casespecific variables . . . relevant to the reasonableness of attorney's fees.” Arbor Hill, 522 F.3d at 190 (emphasis in original). These variables include:
(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.Id. at 187 n.3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)); see also id. at 190 (“In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors [.]”). “A court does not need to make specific findings as to each factor as long as all are considered.” Zhang v. Zhang, No. 16-CV-04013 (LGS), 2021 WL 1154084, at *2 (S.D.N.Y. Mar. 26, 2021).
As some courts have noted, “although the Second Circuit in Arbor Hill held that the Johnson factors are to be considered in setting the reasonable hourly rate, some of the factors ‘are more logically related to determining the number of hours that should be compensated, and others, such as the extent of success, might be considered in setting the number of compensable hours or in making a further adjustment after a presumptive fee has been established.'” Adorno v. Port Auth. of New York & New Jersey, 685 F.Supp.2d 507, 512 (S.D.N.Y. 2010), on reconsideration in part, No. 06-CV-00593 (DC), 2010 WL 727480 (S.D.N.Y. Mar. 2, 2010) (quoting Rozell v. Ross-Holst, 576 F.Supp.2d 527, 537 n.1 (S.D.N.Y.2008)); accord Robinson v. City of N.Y., No. 05-CV-09545 (GEL), 2009 WL 3109846, at *4 n.6 (S.D.N.Y. Sept. 29, 2009). “The key is that the Johnson factors are weighed at some point in the process.” Id. (citing Rozell, 576 F.Supp.2d at 537 n. 1). This comports with the Second Circuit's recent explanation that, “while 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, 934 F.3d at 233.
“[T]he district court . . . should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Torres, 2020 WL 4883807, at *3 (citing Arbor Hill, 522 F.3d at 190); 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). In deciding what constitutes a reasonable rate, a court “is to evaluate the ‘evidence proffered by the parties' and may take ‘judicial notice of the rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district.'” Errant Gene Therapeutic, LLC v. Sloan-Kettering Inst. for Cancer Rsch., 286 F.Supp.3d 585, 588 (S.D.N.Y. 2018) (quoting Farbotko, 433 F.3d at 209), aff'd, 2018 WL 3094913 (S.D.N.Y. June 21, 2018), aff'd, 768 Fed.Appx. 141 (2d Cir. 2019). “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 Torres, 2020 WL 4883807, at *3 (“The Second Circuit's ‘forum rule generally requires use of the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee.'”) (quoting Bergerson, 652 F.3d at 290). “Because the fee applicant bears the burden of establishing the reasonableness of the hourly rates requested, the applicant must produce satisfactory evidence . . . that the requested rates are in line with those prevailing in the community.” Torres, 2020 WL 4883807, at *3 (internal quotation marks omitted).
Plaintiff seeks recovery of fees for work done by 15 attorneys, as well as numerous paralegals and law clerks at Neufeld, Scheck & Brustin, LLP (“NSB”). (See Pl.'s Mem. at 6-7, 14; Freudenberger Decl. ¶ 26.) Plaintiff is seeking reimbursement for time expended at the hourly rates of $900 for Nick Brustin (“Brustin”); $800 for Anna Benvenutti Hoffmann (“Hoffmann”) and Emma Freudenberger (“Freudenberger”); $500 for Amelia Green (“Green”); $450 for Len Kamdang (“Kamdang”), Richard Sawyer (“Sawyer”) and Sona Shah (“Shah”); $425 for Bettina Roberts (“Roberts”), Christina Matthias (“Matthias”) and Katie McCarthy (“McCarthy”); $400 for Avinash Samarth (“Samarth”) and Katie Haas (“Haas”); $375 for Kate Fetrow (“Fetrow”); $350 for Gerardo Romo (“Romo”); $325 for Rhianna Rey (“Rey”); and $200 for paralegals and law clerks. (See id.)
Plaintiff argues that these rates are reasonable given the market rates for attorneys practicing similarly complex federal litigation in the Southern District. (See Pl.'s Mem. at 15-16.) In addition to citing case law, Plaintiff has submitted affidavits from attorneys at Emery Celli Brinckerhoff Abady Ward & Maazel LLP (“ECBA”), Morrison & Foerster and Cravath, Swaine & Moore LLP (“Cravath”), each attesting that the requested rates are comparable to rates typically charged by attorneys in complex litigation. (See Celli Decl., ECF No. 510-1; Loewenson Decl., ECF No. 510-2; Skaistis Decl., ECF No. 510-3.) Plaintiff also argues that NSB's past fee awards support the rates requested. (Pl.'s Mem. at 16.) In particular, Plaintiff relies on Restivo v. Nassau Cnty., another wrongful conviction case in which two NSB named partners were awarded hourly rates of $700. See Restivo, No. 06-CV-06720 (JS) (SIL), 2015 WL 7734100, at *2-3 (E.D.N.Y. Nov. 30, 2015) (awarding lead counsel Scheck and Neufeld hourly rate of $700 and awarding Brustin $600 based on Southern District rates), aff'd sub nom. Restivo v. Hessemann, 846 F.3d 547 (2d Cir. 2017). There, the court reasoned that, although an hourly rate of $700 was high, “it [was] a reasonable rate in light of the complexity of the issues involved in [the] dispute; the forty years of experience litigating civil rights that both attorneys brought to the case; and the market for legal services in the Southern District of New York, which support[ed] a $700 per hour rate for senior partners.” id. at *3; see also Restivo v. Nassau Cnty., No. 06-CV-06720 (JS) (SIL), 2019 WL 111048, at *3 (E.D.N.Y. Jan. 4, 2019) (reaffirming rates upon supplemental fee application). Plaintiff asserts that Restivo supports even higher hourly rates now, given inflation in market rates and counsel's considerable additional experience and success in § 1983 cases. (Pl.'s Mem. at 17.)
In response, Defendants argue that these rates are excessive and that, in contrast to the cases cited by Plaintiff, courts in this District continue to uphold rates of $350 to $450 per hour for experienced civil rights litigators. (Defs.' Opp. Mem. at 4-8.) Defendants argue that Restivo is distinguishable given the length and complexity of that case and that rates awarded to attorneys from Cravath and Morrison & Foerster, which have much larger footprints, are not apt comparisons in calculating NSB's hourly rates. (id. at 6-7.) Defendants also argue that Plaintiff's fee award should consider what they characterize as his “limited degree of success” given that he prevailed against only one of the three defendants who remained for trial and recovered “only a fraction of the relief sought.” (id. at 9.)
As the Second Circuit has recognized, “NSB has particular experience litigating wrongful conviction suits and has successfully litigated dozens of these cases nationwide[.]” Restivo, 846 F.3d at 590. Although not as long and complex as Restivo, which continued over eight years and involved two trials, this case lasted four years, required significant discovery and involved expert testimony on the reliability of eyewitness identification. (Freudenberger Decl. ¶¶ 7-17.) Counsel also faced the challenge of preparing a plaintiff with mental health struggles and preparing for trial on multiple occasions given the disruptions imposed by the COVID-19 pandemic. (id. ¶¶ 1820; Brustin Decl. ¶ 22.) In addition, NSB took this case on a contingency fee and, thus, accepted significant risk. (See Pl.'s Mem. at 22.)
On the other hand, certain case-specific variables weigh against the rates requested by Plaintiff. First, the Second Circuit repeatedly has held that the degree of success obtained is “the most critical factor” in determining the reasonableness of a fee award. Raja v. Burns, 43 F.4th 80, 88 (2d Cir. 2022); Vilkhu v. City of New York, 372 Fed.Appx. 222, 224 (2d Cir. 2010) (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)); Barfield v. New York City Health & Hospitals Corp., 537 F.3d 132, 152 (2d Cir. 2008). As set forth above, several of Plaintiff's claims did not survive to trial and he did not prevail against two of the defendants at trial. (See also Defs.' Opp. Mem. at 9.) Moreover, the jury awarded a verdict that was far less than he sought. During closing arguments, Plaintiff's counsel asked the jury to award him $2 million for each year he was imprisoned and an additional $10 million for suffering he endured since his release, for a total of more than $49 million. (See Trial Tr., ECF No. 502, at 1876-77.) However, the jury awarded $5 million. (See Verdict.) Although, as Plaintiff points out, the proportionality of the damage award to the fee award is not a proper consideration (see Pl.'s Reply Mem. at 6 (citing cases)), the amount awarded is a factor is analyzing Plaintiff's overall success. See Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d Cir. 2005) (distinguishing between “impermissible consideration of disproportionality between the fees claimed and the amount at issue in the suit” and “permissible consideration of plaintiff's degree of success”).
Second, courts in this District have recognized that mid-size civil rights firms like NSB are not “comparable to large Manhattan firms employing hundreds of lawyers.” Vilkhu v. City of New York, No. 06-CV-02095 (CPS) (JO), 2009 WL 1851019, at *4 (E.D.N.Y. June 26, 2009) (awarding ECBA fees based on “billing rates of mid-size civil rights law firms located in the Southern District”), vacated and remanded on other grounds, 372 Fed.Appx. 222 (2d Cir. 2010); see also Torres, 2020 WL 4883807, at *5 n.4 (rejecting, in discrimination case brought by civil rights firm, comparison to hourly rates awarded in copyright case litigated by two large, international law firms with multiple offices and practice areas); Wise v. Kelly, 620 F.Supp.2d 435, 446 (S.D.N.Y. 2008) (“As different as ECBA is from a one to three-person firm or nonprofit entity, so, too, is it different from a firm like Skadden.”).
Rather, precedent in this District suggests that a reasonable hourly rate for a civil rights attorney can range from $250 to $650, with rates clustering around $450 per hour for experienced attorneys in “garden variety” civil rights cases. See Lilly, 934 F.3d at 231 (affirming district court award of $450 per hour rate to solo-practitioner with over 15 years of experiencein “garden variety” civil rights case); see also Santander Consumer USA, Inc. v. City of Yonkers, No. 20-CV-04553 (KMK), 2022 WL 4134718, at *4 (S.D.N.Y. Sept. 12, 2022) (awarding $600 hourly rate to experienced civil rights litigator with over 30 years of experience and $500 rate to partner with 11 years of experience in commercial and civil rights litigation); Hughes v. City of New York, No. 18-CV-09380 (MKV), 2022 WL 3919637, at *3 (S.D.N.Y. Aug. 31, 2022) (awarding $400 hourly rate to civil rights litigator with 15 years of experience); Olaechea v. City of New York, No. 17-CV-04797 (RA), 2022 WL 3211424, at *14 (S.D.N.Y. Aug. 9, 2022) (awarding $400 hourly rate to civil rights litigator with 24 years of experience); Jones v. City of New York, No. 16-CV-08080 (JGK) (KNF), 2021 WL 3773460, at *18 (S.D.N.Y. Aug. 24, 2021) (finding $450 hourly rate reasonable for attorney with approximately 8 years of experience who had litigated over 50 civil rights cases), report and recommendation adopted sub nom. Jones v. Treubig, 2022 WL 1223215, at *5 (S.D.N.Y. Apr. 26, 2022); Ekukpe, 2020 WL 1529259, at *3 (“In the Southern District of New York, the customary rate for experienced litigators ranges from about $400 to $600 per hour in civil rights . . . cases.”); Cocuzza v. Rockland Cnty., New York, No. 17-CV-08217, 2019 WL 6498915, at *4 (S.D.N.Y. Nov. 7, 2019), report and recommendation adopted, 2019 WL 6498092 (S.D.N.Y. Dec. 2, 2019) (awarding $400 hourly rate for civil rights attorney with over 10 years of experience). The Court recognizes, however, that these rates have remained static for some time, see, e.g., Vilkhu, 2009 WL 1851019, at *4 (noting that for ten years prior to 2009, rates for civil rights attorneys in Southern District ranged from $250 to $600), and agrees with one recent court that concluded “civil litigators should not be limited to hourly rates that have not adapted to the changing times.” Champagne v. Columbia Dental, P.C., No. 18-CV-01390 (VLB), 2022 WL 951687, at *5 (D. Conn. Mar. 30, 2022) (noting that “[b]ased on the U.S. Bureau of Labor Statistics' Consumer Price Index Inflation Calculator, an hourly rate of $450 in 2008 was the equivalent buying power to $604.85 in February 2022).
See Lilly v. City of New York, No. 16-CV-00322 (ER), 2017 WL 3493249, at *1 (S.D.N.Y. Aug. 15, 2017) (discussing attorney's experience), aff'd in relevant part, 934 F.3d 222 (2d Cir. 2019).
With these overarching considerations in mind, the Court now considers the experience, reputation and ability of the attorneys involved in this action.
A. Co-Lead Counsel Brustin And Freudenberger
Brustin and Freudenberger were co-lead counsel for Plaintiff from the inception of this action. (Brustin Decl. ¶ 3; Freudenberger Decl. ¶ 3.) Plaintiff requests a $900 hourly rate for Brustin and a $800 hourly rate for Freudenberger. (Pl.'s Mem. at 14.) Defendants contend that Brustin should be awarded a reduced hourly rate of $500 and Freudenberger should be awarded $450. (Defs.' Opp. Mem. at 10.)
Brustin began practicing law in 1995 following his graduation from Fordham Law School. (Brustin Decl. ¶ 5.) He worked as an Honors Program Trial Attorney with the Civil Rights Division of the U.S. Department of Justice from 1995 to 1997 and then became an associate at Beldock Levine & Hoffman, LLP in New York, where the majority of his practice was devoted to civil rights and employment litigation. (id. ¶¶ 5-6.) In 1999, Brustin became an associate at what is now NSB (formerly known as Cochran Neufeld & Scheck, LLP). (id. ¶ 7.) Brustin became a partner in 2003 and a named partner in 2009. (id. ¶¶ 1, 7.) Brustin has extensive experience in civil rights litigation and, in the past two decades, has litigated over 50 wrongful conviction cases. (id. ¶¶ 9, 12-16.) Freudenberger graduated from Columbia Law School in 2007 and, following a one-year clerkship at the New Jersey Supreme Court, joined NSB in 2008. (Freudenberger Decl. ¶¶ 62-63.) She became a partner in 2013. (See Freudenberger Resume, ECF No. 510-18.) During her 14 years at NSB, Freudenberger has worked almost exclusively on § 1983 civil rights litigation in federal courts around the country. (Freudenberger Decl. ¶ 64.)
Because almost all of NSB's work is on a contingency basis, NSB attorneys rarely bill by the hour. (Brustin Decl. ¶ 31.) However, in a 2015 civil rights suit where NSB was paid by the hour, Brustin's hourly rate was $650. (id. ¶ 32.) As set forth above, Brustin was awarded a rate of $600 in Restivo, even though he was not one of the two lead counsel. See Restivo, 2015 WL 7734100, at *3. Outside of this district, where rates tend to be lower, Brustin was awarded an hourly rate of $800 in a stipulated fee agreement in a Section 1983 action in the Northern District of California in 2018. (Brustin Decl. ¶ 33.) In 2016, Brustin was awarded a rate of $425 per hour in a wrongful conviction case in the Western District of New York. See Peacock v. City of Rochester, No. 13-CV-06046 (MAT), 2016 WL 4150445, at *7 (W.D.N.Y. Aug. 5, 2016). In 2009, Freudenberger was awarded her then-requested rate of $275 per hour in a civil rights case in the Southern District of Texas. See Rodriguez v. City of Houston, No. 06-CV-02650 (VDG), 2009 WL 10679670, at *3 (S.D. Tex. Dec. 22, 2009).
Having considered the experience of the attorneys, the range of fees commonly awarded in this district and all other case-specific variables, the Court finds that an hourly rate of $700 for Brustin and $600 for Freudenberger is reasonable.
B. Partners Hoffmann And Green
Plaintiff seeks an hourly rate of $800 for Hoffmann, who has been a partner at NSB since 2013 and $500 for Green, who has been a partner since 2021. (Hoffmann Decl., ECF No. 510-4, ¶¶ 3, 16; Green Decl., ECF No. 510-5, ¶¶ 3, 10.) Defendants contend that a rate of $450 is reasonable for Hoffman and a rate of $350 is reasonable for Green. (Defs.' Opp. Mem. at 10.)
Hoffmann graduated from New York University School of Law in 2004 and, following a one-year federal clerkship in the District of Massachusetts, joined NSB in 2006. (Hoffmann Decl. ¶ 3.) In her over 16 years at NSB, Hoffmann's practice has been devoted exclusively to complex civil rights cases, including wrongful conviction and malicious prosecution cases like this one. (id. ¶ 4-8.) Hoffman also heads NSB's appellate practice. (id. ¶ 9.) In one case in which NSB was paid by the hour, Hoffmann's rate was $550. (id. ¶ 11.) In the Trulove stipulated fee agreement in 2018, Hoffman received a rate of $650 per hour for her work. (id. ¶ 12.) Hoffmann worked on this case from October 2018 through October 2022, playing a primary role with respect to substantive briefing and serving as a member of the trial team. (id. ¶¶ 17-20.) In addition, she performed work on the fee petition. (id. ¶¶ 23-24.)
Green graduated from Stanford Law School in 2015 and, following a one-year clerkship with a judge on the United States Court of Appeals for the Fourth Circuit, joined NSB in 2016. (Green Decl. ¶ 3.) At NSB, Green works exclusively on § 1983 civil rights litigation in federal courts around the country. (id. ¶¶ 4-8.) Green worked on this case from February 2021 through August 2022, primarily as a member of the trial team. (id. ¶¶ 11-12.)
Considering the experience of these attorneys and all the case-specific variables discussed above, the Court finds that an hourly rate of $600 for Hoffman and $400 for Green is reasonable.
C. Associates, Staff Attorneys And Fellows
Plaintiff seeks hourly rates between $325 and $450 for the 11 remaining attorneys who worked on this action. (Pl.'s Mem. at 6.) Defendant argues that hourly rates for these attorneys should range from $200 to $325. (Defs.' Opp. Mem. at 10.)
Courts in this District generally have awarded rates between $200 and $350 for associates in civil rights cases. See Torres, 2020 WL 4883807, at *5; Jones, 2021 WL 3773460, at *20; Field v. Metro. Transportation Auth., No. 20-CV-00928 (RA), 2021 WL 22817, at *3 (S.D.N.Y. Jan. 4, 2021); Williams v. Metro-N. R.R. Co., No. 17-CV-03847 (JGK), 2018 WL 3370678, at *6 (S.D.N.Y. June 28, 2018), report and recommendation adopted, 2018 WL 3368713 (S.D.N.Y. July 10, 2018); Golding v. City of New York, No. 15-CV-03498 (ALC) (SN), 2016 WL 6553759, at *3 (S.D.N.Y. Nov. 4, 2016). As with rates for partners, these rates have remained static for some time. See, e.g., Battistoni v. Anderson, No. 08-CV-08762 (LMS), 2012 WL 12883777, at *9 (S.D.N.Y. Nov. 1, 2012) (“rates for associates have ranged from $200 to $350”); Simmonds v. New York City Dept. of Corrections, No. 06-CV-05298, 2008 WL 4303474, at *5, 10 (S.D.N.Y. Sept. 16, 2008) (awarding $425 per hour for partner, $325 per hour for senior associate and $250 per hour for junior associate).
Kamdang was a Senior Associate at NSB from September 2018 until December 2019. (Kamdang Decl., ECF No. 510-6, ¶ 1.) Kamdang graduated from University of Michigan Law School in 2003 and had 15 years of experience, serving as a public defender in Washington D.C. and a federal defender in the Eastern District of New York, prior to joining NSB. (id. ¶ 3.) Kamdang played an active role in this case during discovery, including taking and defending a number of depositions. (id. ¶ 8.)
Sawyer graduated from New York University School of Law in 2013 and, following two clerkships and one year as a staff attorney for the Second Circuit, joined NSB in October 2016. (Sawyer Decl., ECF No. 510-7, ¶ 1; Sawyer Resume, ECF No. 510-7, at PDF p. 6.) Sawyer worked on this case from October 2016 until January 2021. (Sawyer Decl. ¶¶ 7-8.)
Roberts, who graduated from Duke Law School in 2010, was a staff attorney at NSB from January 2018 until April 2021. (Roberts Decl., ECF No. 510-9 ¶¶ 1,3.) She worked on this case from December 2019 to April 2021, primarily conducting legal research and drafting briefs and motions. (id. ¶¶ 7-8.)
Samarth was a Fellow at NSB who worked on this case from October 2019 until February 2020. (Samarth Decl., ECF No. 510-12, ¶¶ 1, 7.) His work primarily involved summary judgment briefing and expert depositions. (id. ¶ 8.) Attorney Haas was another NSB Fellow who worked on this case from January 2021 until August 2022. (Haas Decl., ECF No. 510-13, ¶¶ 1, 7.) Haas worked on a variety of legal tasks in preparation for and during trial. (id. ¶ 8.)
McCarthy is a current associate at NSB, which she first joined as a law clerk in 2017 after completing two one-year clerkships. (McCarthy Decl., ECF No. 510-11, ¶¶ 1,3.) McCarthy worked on this case in March 2021 to prepare Plaintiff's opposition to Defendants' Daubert motion. (id. ¶¶ 7-8.) Fetrow was an associate at NSB who worked on this case in March and April 2021, primarily conducting research and working on a motion in limine. (Fetrow Decl., ECF No. 510-14, ¶¶ 1, 7-8.)
Matthias is a current senior associate at NSB, which she joined in 2021 with six years of experience. (Matthias Decl., ECF No. 510-10, ¶¶ 1, 3.) Matthias worked on this case for two months, in June and July 2021, primarily on drafting motions in limine. (id. ¶¶ 7-8.) Rey worked as a staff attorney on this case for the same time period, also primarily working on motions in limine. (Rey Decl., ECF No. 510-16, ¶¶ 1, 7-8.)
Romo, another NSB associate, graduated from New York University School of Law in 2019 and joined NSB in 2021, following a fellowship with the American Civil Liberties Union and a one-year federal clerkship. (Romo Decl., ECF No. 510-15, ¶¶ 1,3.) Romo began working on this case in December 2021 and continued to do so through October 2022. (id. ¶ 7.) Romo worked on a variety of legal tasks in preparation for and during trial and also worked on the fee petition. (id. ¶ 8, 11-12.)
Shah is a current senior associate at NSB. (Shah Decl., ECF No. 510-8, ¶ 1.) Shah joined NSB in 2021 and her role in this case was limited to work on the fee petition between August and October 2022. (Shah Decl. ¶¶ 3, 7.)
Considering the skill and experience of these attorneys, along with all the case-specific variables discussed above, the Court finds that the following hourly rates are reasonable: $375 for Kamdang, Sawyer and Shah; $350 for Roberts, Matthias and McCarthy; $325 for Samarth and Haas; $300 for Fetrow; $275 for Romo; and $250 for Rey.
D. Paralegals And Law Clerks
Plaintiffs seek a rate of $200 for paralegals and law clerks. (Pl.'s Mem. at 6.) Defendants assert that a rate of $150 is appropriate. (Defs.' Opp. Mem. at 10.) Seven paralegals and 18 law clerks worked on this case over the course of the litigation. (See Freudenberger Decl. ¶¶ 55-56; Freudenberger Decl., Ex. 17, ECF No. 510-17.) “Courts in this district typically award paralegal rates in the range of $100-150 per hour.” Williams, 2018 WL 3370678, at *8; see also Torres, 2020 WL 4883807, at *5 (noting rate for law clerks and paralegals “is commonly below $200/hour”); Short v. Manhattan Apartments, Inc., No. 11-CV-05989 (SC), 2013 WL 2477266, at *3 (S.D.N.Y. June 10, 2013) (awarding ECBA paralegals rate of $150 per hour). Given the passage of time, and considering all the case-specific variables discussed above, the Court finds that an hourly rate of $175 for paralegals and law clerks is reasonable.
II. Reasonable Hours
NSB seeks compensation for 7635.6 hours of work on this case (5,624.6 hours of attorney time and 2,011 hours of paralegal/law clerk time), plus an additional 270.5 hours of work on the fee petition (173 hours of attorney work and 97.5 hours of paralegal/law clerk time). (Pl.'s Mem. at 6-7 (showing breakdown by attorney).) Defendants argue that the records submitted by Plaintiff “contain entries that are vague, duplicative, and not compensable,” and, thus, the Court should reduce the fees sought by Plaintiff by 45%. (Defs.' Opp. Mem. at 12-18.)
“Reasonable attorneys' fees for preparing the fee application are compensable.” Restivo, 846 F.3d at 592.
Defendants also argue that Plaintiff's motion should be denied, or his fees reduced, because it is not based on contemporaneous time records. (See Defs.' Opp. Mem. at 19-20.) However, the Court is satisfied based on the sworn statements by each attorney in his or her declaration, that “the time records were from contemporaneously kept timekeeping logs which were personally reviewed by each of the submitting attorneys for accuracy.” (Pl.'s Reply Mem. at 10-11.)
Plaintiff must “establish that the number of hours for which [he] seeks compensation are reasonable, and the court must make ‘a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.'” Torres, 2020 WL 4883807, at *3 (quoting Haley v. Pataki, 106 F.3d 478, 484 (2d Cir. 1997)). 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). As to whether hours worked were excessive, “[t]he relevant issue . . . is not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Torres, 2020 WL 4883807, at *3 (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)).
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) (internal quotation marks omitted); see also New York State Ass'n Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983) (finding percentage reductions to be acceptable means for reducing fee applications).
As an initial matter, the Court addresses Defendants' argument that time spent by Plaintiff prior to the filing of the Complaint, in particular time expended by Plaintiff's counsel in relation to his N.Y. Mun. Law. § 50-h hearing and/or his prior N.Y. Crim. Proc. L. § 440.10 motion, is not recoverable. (Defs.' Opp. Mem. at 17 (citing Sawyer Billing Records, ECF No. 510-7, at PDF pp. 9-12; Freudenberger Billing Records, ECF No. 510-19, at PDF p. 2).)
“Where related administrative proceedings precede litigation involving one of the civil rights claims covered by section 1988[,]” a court “may still award attorney's fees for time spent on . . . the discrete portion of the work product from the administrative proceedings that was both useful and of a type ordinarily necessary to advance the civil rights litigation[.]” Raja, 443 F.4th at 92 (quoting N.C. Dep't of Transp. v. Crest St. Cmty. Council, Inc., 479 U.S. 6, 15 (1986)). “Whether such fees are for work that is useful and of a type ordinarily necessary to advance the civil rights litigation depends on the circumstances of the case and of the prior administrative proceeding.” id. (internal quotation marks omitted).
Because a 50-h “hearing is a requisite administrative predicate to filing suit against the City of New York. . . [c]ourts have held that work relating to such hearings is compensable.” Vilkhu, 2009 WL 1851019, at *10 (citing cases). Here, Plaintiff points out that “testimony that [Plaintiff] gave at the 50-h hearing was continually referred to not only in his depositions in this case, but also at the trial” (Pl.'s Reply Mem. at 12) and Plaintiff ultimately prevailed on his state law malicious prosecution claims against Whitaker and the City. Accordingly, the Court finds that the time spent on the 50-h hearing is compensable. Cf. Tucker v. City of New York, 704 F.Supp.2d 347, 358 (S.D.N.Y. 2010) (work at 50-h hearing to preserve state law claims, “reasonably calculated to improve the prospects for his federal claims, at least by way of a future settlement” and, thus, compensable). Similarly, the Court finds that the time spent by Sawyer on the N.Y. C.P.L § 440 appeal was necessary to advance the civil rights litigation, particularly given Defendants “arguments about the basis for the vacatur of Plaintiff's conviction up to and throughout the trial[.]” (Pl.'s Reply Mem. at 12.)
As a condition precedent to the commencement of an action against a municipality or any of its employees, New York General Municipal Law § 50 requires that a notice of claim be filed with the municipality within ninety days after the claims arise. See N.Y. Gen. Mun. L. § 50-e(1)(a)). When a notice of claim is filed against a municipality, New York General Municipal Law § 50-h permits the municipality to “demand an examination of the claimant relative to the occurrence and extent of the injuries or damages for which claim is made,” and where a demand for examination has been served, “no action shall be commenced against the [municipality] against which the claim is made unless the claimant has duly complied with such demand for examination, which compliance shall be in addition to the requirements of section [50-e].” N.Y. Gen. Mun. Law § 50-h(1), (5).
The Court also has considered other variables in assessing the reasonable hours expended. See Adorno 685 F.Supp. at 512 (noting applicability of Johnson factors, including extent of success, in setting number of compensable hours). As set forth above, Plaintiff was not successful on all of his claims. The Court recognizes, however, that the factual and legal bases of Plaintiff's claims were overlapping, making it “difficult to divide the hours expended on a claim-by-claim basis.” Raja, 43 F.4th at 88 (quoting Hensely, 461 U.S. at 435). Thus, the Court “look[s] to the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” id. The Court has considered this as one factor in recommending the across-the-board reduction of hours set forth below.
In addition, Defendants argue that some of NSB's time entries are vague, reveal duplication of effort or are otherwise deficient. (See Defs.' Opp. Mem. at 12-16.) A court “may [] decrease the total award from the claimed amount because of vagueness, inconsistencies, and other deficiencies in the billing records.” Raja, 43 F.4th at 87 (internal quotation marks omitted). “Vague or incomplete” time records do not “enable the court to determine whether a reasonable amount of time was spent on each activity” or “whether the particular activity is compensable.” Miroglio S.P.A. v. Conway Stores, Inc., 629 F.Supp.2d 307, 313 (S.D.N.Y. 2009). Similarly, block billing, although “by no means prohibited in this Circuit[,]” may interfere with meaningful review. See Raja, 43 F.4th at 87 (“We have found block billing to be permissible as long as the district court is still able to conduct a meaningful review of the hours for which counsel seeks reimbursement.”) (internal quotation marks omitted). In addition, district courts have “ample discretion” in “assessing the extent of staffing” that is “appropriate for a given case.” Carey, 711 F.2d at 1146 (quoting Seigal v. Merrick, 619 F.2d 160, 164 (2d Cir. 1980)). While “[t]he use of multiple attorneys . . . is not unreasonable per se,” Simmonds, 2008 WL 4303474, at *6 (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.
The Court agrees that certain time entries identified by Defendants, such as entries referring to “notes” and “case materials[,]” and some entries referring to “emails” or “organizing documents” without further descriptions, are vague. (See Defs.' Opp. Mem. at 13.) However, the Court finds that other entries contested by Defendants, such as paralegal entries noting “review and summarize transcript,” are not impermissibly vague. In the case of those entries, Defendants appear to contest the total time spent by two paralegals on that activity without referencing the fact that the hours were spent across more than 30 days during the discovery period. Overall, the Court finds that the percentage of vague entries is low. In addition, although Defendants identify some instances of block billing, these too are few, and the Court finds that the descriptions provided are sufficient to allow for meaningful review.
With respect to duplication of effort, Defendants identify multiple phone calls and meetings with more than four attorneys, including one meeting regarding the jury questionnaire in which seven people participated. (Defs.' Opp. Mem. at 15.) Defendants also focus on work by multiple attorneys on motions in limine and attendance at some court proceedings (id. at 15-16.) Plaintiff responds that these hours are reasonable, pointing out that there were 19 motions in limine filed in this action. (Pl.'s Reply Mem. at 10.) The Court agrees with Defendants that some of the hours billed are in excess of that which is reasonable, particularly with respect to meetings involving more than four attorneys. See Loc. 1180, Commc'ns Workers of Am., AFL-CIO v. City of New York, 392 F.Supp.3d 361, 381 (S.D.N.Y. 2019) (in Court's experience reasonable client would not agree to compensate counsel for hours spent by each attorney attending team meetings).
Considering all of these factors, and having carefully reviewed the time records submitted by Plaintiff's counsel, the Court finds that some reduction is appropriate. However, because it is impossible to say with precision the extent to which these hours should be reduced, the Court finds it appropriate to employ an across-the-board percentage reduction in the hours expended. In the Court's view, an across-the-board reduction of 20 percent in the hours sought by Plaintiff accomplishes “rough justice.” See Fox, 563 U.S at 838.
Defendants also argue that the fee award should be offset by any fees received by NSB pursuant to the contingency agreement. (Defs.' Opp. Mem. at 22-23.) However, NSB responds that it “will not take both the § 1988 fee award and a percentage of the damages awarded to Plaintiff[,]” rather, “under the fee agreement counsel[,] is entitled to compensation of either the awarded fees or a percentage of the total recovery.” (Pl.'s Reply Mem. at 14-15 (emphasis omitted).)
The following chart reflects a calculation of the attorneys' fees that I recommend be awarded, by attorney, for prosecution of this action:
| Name | Hourly Rate | Substantive Hours After 20% Reduction | Amount Awarded |
| Brustin | $700 | 808 (1010 less 20%) | $565,600 |
| Freudenberger | $600 | 607.4 (759.3 less 20%) | $364,440 |
| Hoffman | $600 | 591.9 (739.9 less 20%) | $355,140 |
| Green | $400 | 146.1 (182.6 less 20%) | $58,440 |
| Kamdang | $375 | 216.8 (271 less 20%) | $81,300 |
| Sawyer | $375 | 1000.2 (1250.3 less 20%) | $375,075 |
| Roberts | $350 | 93.4 (116.7 less 20%) | $32,690 |
| Matthias | $350 | 31.4 (39.2 less 20%) | $10,990 |
| McCarthy | $350 | 14.7 (18.4 less 20%) | $5,145 |
| Samarth | $325 | 114.7 (143.4 less 20%) | $37,278 |
| Haas | $325 | 530.7 (663.4 less 20%) | $172,478 |
| Fetrow | $300 | 19.9 (24.9 less 20%) | $5,970 |
| Romo | $275 | 305 (381.3 less 20%) | $83,875 |
| Rey | $250 | 19.4 (24.2 less 20%) | $4,850 |
| Paralegals/Law Clerks | $175 | 1608.8 (2011 less 20%) | $281,540 |
| TOTAL | $2,434,811 |
With respect to NSB's work on the fee application, however, the Court finds the amount of time claimed, which is approximately 3.5 percent of the total time claimed, to be reasonable. See, e.g., Nnebe v. Daus, No. 06-CV-04991 (RJS), 2022 WL 612967, at *9 (S.D.N.Y. Mar. 1, 2022) (citing Davis v. City of New Rochelle, N.Y., 156 F.R.D. 549, 561 (S.D.N.Y. 1994) (“[C]ourts within this Circuit have awarded fee application awards in the range of 8 to 24 percent of the total time claimed.”)). The following chart reflects a calculation of the attorneys' fees that I recommend be awarded in connection with time spent on the fee application.
Name
Hourly Rate
Fee Petition Hours
Amount Awarded
Brustin
$700
12.3
$8,610
Freudenberger
$600
5.2
$3,120
Hoffman
$600
45.7
$27,420
| Shah | $375 | 55.2 | $20,700 |
| Romo | $275 | 54.6 | $15,015 |
| Paralegals/Law Clerks | $175 | 97.5 | $17,063 |
| TOTAL | $91,928 |
Plaintiff also seeks reimbursement for travel by Brustin, Kamdang and Sawyer at 50% of their regular rates. (See Freudenberger Decl. ¶ 60.) Although courts in this Circuit have awarded fees for attorney travel time at half an attorney's hourly rate, courts also recognize that “clients resist paying for travel time.” Meide Zhang v. Liang Zhang, No. 16-CV-04013 (LGS) (SLC), 2020 WL 9256464, at *12 (S.D.N.Y. Dec. 21, 2020), report and recommendation adopted as modified, 2021 WL 1154084 (S.D.N.Y. Mar. 26, 2021); see also Tatum v. City of New York, No. 06-CV-04290 (PGG) (GWG), 2010 WL 334975, at *8 (S.D.N.Y. Jan. 28, 2010).
Here, the Court finds that several of the travel time entries lack sufficient detail, including where and/or why the attorneys traveled, for the Court to determine whether these costs are reasonable. (See Brustin Decl. EX. B Chart 2, ECF No. 511-2, at p. 12) (“travel home”); Kamdang Decl. Ex. B, ECF No. 510-6, at p. 13) (“travel/prep for Rosario”); Sawyer Decl. Ex. B., ECF No. 5107, at p. 42 (“office”)). Accordingly, the Court recommends awarding travel time at half of the regular rate, only for non-local travel where the entries specify the destination and purpose, namely 6 hours to Kamdang for travel to Dallas for a deposition and 11.1 hours to Sawyer for travel to and from a witnesses' home in Palm Beach. Accord Torres v. City of New York, No. 18-CV-03644 (LGS) (KHP), 2020 WL 6561599, at *8 (S.D.N.Y. June 3, 2020) (declining to award travel costs when “[p]laintiff provided no detail as to who traveled or where or why or the time of travel”). This amounts to a total of $3,206.25.
III. Reasonable Costs
NSB seeks to recover expenses in the total amount of $283,800.99. (Pl.'s Mem. at 24-25; Brustin Decl., Ex. C, Chart 1, ECF No. 511-3, at PDF p.2.) Plaintiff's costs include $60,008.71 for deposition and discovery expenses; $18,334.00 in photocopying costs; $1,044.83 for shipping; $13,417.48 for legal research; $8,865.37 for transcripts; $736.77 for witness fees; $2,830.57 for process servers; $789.20 for docket, filing, record request and service fees; $9,459.08 for trial costs; and $44,504.69 for travel expenses. (Pl.'s Mem. at 24-25; Brustin Decl. ¶¶ 40-71 & Ex. C.) Plaintiff also seeks $34,979.29 for investigation costs and $88,831.00 in jury consultant fees. (id. at 25.) The Second Circuit has consistently “held that attorney's fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” Wat Bey v. City of New York, No. 01-CV-09406 (AJN), 2013 WL 12082743, at *38 (S.D.N.Y. Sept. 4, 2013), (citing U.S. Football League v. Nat'l Football League, 887 F.2d 408, 416 (2d Cir. 1989)), aff'd sub nom. Rivera v. City of New York, 594 Fed.Appx. 2 (2d Cir. 2014).
Defendants argue that Plaintiff has not established the reasonableness of the costs sought or provided actual documentation, and therefore the Court should reduce or deny Plaintiff's request for costs. (Defs.' Opp. Mem. at 24-26.) With respect to documentation, the Court finds that the sworn declaration of Brustin, which includes charts itemizing each category of expenses, is sufficient to establish the majority of Plaintiff's expenses, with the exception of certain expenses discussed below. See Zhang, 2020 WL 9256464, at *5 (court may “accept as sufficient a sworn statement or declaration under penalty of perjury that certain amounts were expended on particular items.”) (internal quotation marks and alterations omitted); see also Ravina v. Columbia Univ., No. 16-CV-02137 (RA), 2020 WL 1080780, at *15 (S.D.N.Y. Mar. 6, 2020) (“A sworn statement or declaration under penalty of perjury that certain amounts were expended on particular items is ordinarily . . . sufficient.”) (quoting Hernandez v. JRPAC Inc., No. 14-CV-04176 (PAE), 2017 WL 66325, at *2 (S.D.N.Y. Jan. 6, 2017)).
With respect to reasonableness, Defendants first point to Plaintiff's request for $18,334 in copying costs, arguing that Plaintiff has not established the necessity or reasonableness of these costs. (See Defs.' Opp. Mem. at 24-25.) Costs for printing and photocopying are the types of “[o]ut of pocket litigation costs” that “are generally recoverable if they are necessary for the representation of the client.” AW Indus., Inc. v. Sleep Well Mattress, Inc., No. 07-CV-03969 (SLT) (JMA), 2009 WL 485186 at *6 (E.D.N.Y. Feb. 26, 2009) (internal quotation marks and citation omitted). However, “while printing and copying by an outside vendor at market rates are [ ] reasonable, internal copying costs for undescribed documents are not.” Zhang, 2020 WL 9256464, at *13 (citing Tatum, 2010 WL 334975, at *13 (noting that “Plaintiff's counsel may also recover photocopying costs, ‘but [ ] must make clear what documents were copied, how many copies were made, the cost per page charged for copying, and why the copies were necessary.”). Here, Plaintiff's counsel did not provide any detail regarding the copies that were made. (See Brustin Decl. Ex. C Chart 5 at PDF p. 7.) Further, it appears that the majority of the printing for which Plaintiff seeks reimbursement was done in-house. (See Brustin Decl. ¶¶ 52, 54; but see Brustin Decl. ¶ 53.) Accordingly, the Court finds that Plaintiff is not entitled to recover copying costs, with the exception of the $861.20 in copying and scanning costs performed by FedEx. (Brustin Decl. Ex. C Chart 5 at PDF p. 7.)
Although Brustin refers to the chart of printing costs as “expenditures for copying and duplication by outside vendors” (Brustin Decl. ¶ 53), the chart itself refers to “Papercut charges[.]” (Brustin Decl. Ex. C Chart 5 at PDF p. 7.) PaperCut is a print management software, see https://www.papercut.com/ (last visited January 27, 2023), and appears to have been used by NSB to track in-house copying and printing. (Brustin Decl. ¶ 54.)
Defendants also argue that Plaintiff's request for jury consulting costs should be denied because Plaintiff's counsel has not provided sufficient information to determine whether these costs, totaling $88,831.00, were reasonable or necessary. (Defs.' Opp. Mem. at 25.) Although courts have awarded costs for jury focus groups and other trial support services, such “premium services” are not generally awarded as a matter of course. See Ravina, 2020 WL 1080780, at *14 (citing Endo Pharm. Inc. v. Amneal Pharm., LLC, No. 12-CV-08115 (JPO), 2019 WL 2417386, at *5 (S.D.N.Y. June 10, 2019) (“[E]ven though a prevailing party's decision to fork out hundreds of thousands of dollars to consultants to develop a compelling visual trial narrative through the creation of purpose-made illustrations and animations will obviously help that party to present its case effectively, it does not follow that the losing party should bear such costs as a matter of course.”); Amerisource Corp. v. Rx USA Int'l Inc., No. 02-CV-02514 (JMA), 2010 WL 2160017, at *15 (E.D.N.Y. May 26, 2010) (expenditure of $96,209.52 on [litigation consulting] services such as jury focus group was unnecessary and non-compensable because it “would be unreasonable to hold [defendant] accountable for such premium services, which far exceed the standard litigation expenses of the average reasonable litigant”)).
Moreover, some courts have found that similar services “fall properly under the rubric of attorneys' fees rather than the rubric of costs” See Ravina, 2020 WL 1080780, at *14 (citing cases); see also Song v. 47 Old Country, Inc., No. 09-CV-05566 (LDW) (SIL), 2015 WL 10641286, at *6 (E.D.N.Y. Oct. 1, 2015) (determining fees for litigation support services from Dubin Research & Consulting, Inc. based on hours worked and reasonable hourly rate), report and recommendation adopted, 2016 WL 1425811 (E.D.N.Y. Mar. 31, 2016). Here, the Court cannot assess Plaintiff's consulting fees under a rubric of attorney's fees because Plaintiff has not provided the number of hours worked by the jury consultants nor their hourly rate.
In his Reply Memorandum, Plaintiff states that “they billed at their typical rate[,]” (Pl.'s Reply Mem. at 15), but does not state what that rate was.
Although the Court agrees with Plaintiff that “[i]t was reasonable for Plaintiff to consult with experienced jury consultants with expertise in wrongful conviction cases in arguing for, crafting, and reviewing the jury questionnaire, and for distilling and assisting Plaintiff in using that information in voir dire” (Pl.'s Reply Mem. at 15), because Plaintiff has not provided sufficient information to support the amount of the fee sought, I recommend that the Court reduce the jury consultant fees by 50 percent and award $44,415.50. Cf. Ravina, (awarding $100,000 out of approximately $356,000 sought for litigation support services).
Further, with respect to travel expenses, Defendants argue that these expenses are not supported by actual receipts or documentation, and that the summary chart provided is insufficient to allow the Court to determine whether these charges were reasonable or necessary. (Defs.' Opp. Mem. at 25-26.) For example, Defendants point to an entry for Kamdang for $1,092.58 for “Exp[ense] Reimb[ursement].” (id.; see also Brustin Decl. Ex. C Chart 10 at PDF p. 13.) The Court agrees that the entry cited by Defendants, as well as additional entries are improperly supported and/or unreasonable. For example, claimed costs include unexplained “travel expenses” to “ET Dollar” (Brustin Decl. Ex. C Chart 10 at PDF p. 13), a late checkout fee (id. at p. 14) and multiple entries for rides home for the same attorney on the same date. (See, e.g. id. at p. 13 (two entries dated 7/24/2022 for “Katie H Ride Home After 9pm”).) In addition, the Court agrees that, in some cases, the summary format makes it difficult to assess reasonableness. (See, e.g., Brustin Decl. Ex. C at PDF p. 14-15 (lumping together costs for meals, transportation and lodging); see Torres, 2020 WL 6561599, at *8 (reducing costs when no detail provided regarding meals). To account for these deficiencies, the Court recommends reducing the amount of costs awarded for travel expenses by 20 percent from $44,504.69 to $35,603.75.
Finally, Defendants contend that Plaintiff's costs for computer research are not recoverable, relying on U.S. for Use & Benefit of Evergreen Pipeline Const. Co. v. Merritt Meridian Const. Corp., 95 F.3d 153, 173 (2d Cir. 1996). (See Defs.' Opp. Mem. at 26.) However, as the Second Circuit explained in Arbor Hill, “in the context of a fee-shifting provision,” which was not the case in Evergreen, “the charges for such online research may properly be included in a fee award.” Arbor Hill, 369 F.3d at 98; see also Torres, 2020 WL 6561599, at *8 (awarding costs for, inter alia, electronic research charges). Accordingly, the Court recommends that Plaintiff be awarded the costs he seeks for computer research (i.e., $13,417.48).
Defendants do not challenge the specific costs sought by Plaintiff for deposition and discovery expenses; investigation fees and expenses; process server fees; records request and related court fees; shipping costs; transcript costs; trial costs; or witness fees. (See Brustin Decl. ¶¶ 45-50, 55-61, 66-68, 70-71; see also Brustin Decl. Ex. C.) Having reviewed these costs, the Court finds that they are reasonable.
In sum, the Court recommends that Plaintiff be awarded a total of $213,011.75 in costs, consisting of $60,008.71 for deposition and discovery expenses; $861.20 in photocopying costs; $1,044.83 for shipping; $13,417.48 for legal research; $8,865.37 for transcripts; $736.77 for witness fees; $2,830.57 for process servers; $789.20 for docket, filing, record request and service fees; $9,459.08 for trial costs; $35,603.75 for travel expenses; $34,979.29 for investigation costs; and $44,415.50 in jury consultant fees.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion (ECF No. 508) be GRANTED IN PART and DENIED IN PART and that Plaintiff be awarded attorneys' fees in the amount of $2,529,945.25, plus $213,011.75 in costs for a total award of $2,742,957.00.
This amount consists of $2,434,811.00 for prosecution of the case, $91,928.00 for the fees motion and $3,206.25 for travel time.
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. 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. 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Schofield.
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).