Opinion
CV 15-7244 (GRB)(ARL)
2021-12-07
Demitrios STRATAKOS, Plaintiff, v. NASSAU COUNTY; Police Officer Prashant Rane and Police Officer Karl Padilla, Defendants.
Ethan Daniel Irwin, Ethan D. Irwin PLLC, New York, NY, James M. Ingoglia, Raiser & Kenniff, P.C., Steven Raiser, Raser & Kenniff, Mineola, NY, for Plaintiff. John Alexander Genua, Ralph J. Reissman, Spencer David Shapiro, Office of the Nassau County Attorney, Mineola, NY, Alexander Sendrowitz, Quatela Chimeri, PLLC, Hauppauge, NY, for Defendants Nassau County, Police Officer Prashant Rane, Police Officer Karl Padilla, Police Officer "John" Cabey, Sergeant James Brown. John Alexander Genua, Spencer David Shapiro, Office of the Nassau County Attorney, Mineola, NY, Alexander Sendrowitz, Quatela Chimeri, PLLC, Hauppauge, NY, for Defendant Detective "John" Dluginski. Alexander Sendrowitz, Quatela Chimeri, PLLC, Hauppauge, NY, for Defendant Police Officer John Does Numbers 1-10.
Ethan Daniel Irwin, Ethan D. Irwin PLLC, New York, NY, James M. Ingoglia, Raiser & Kenniff, P.C., Steven Raiser, Raser & Kenniff, Mineola, NY, for Plaintiff.
John Alexander Genua, Ralph J. Reissman, Spencer David Shapiro, Office of the Nassau County Attorney, Mineola, NY, Alexander Sendrowitz, Quatela Chimeri, PLLC, Hauppauge, NY, for Defendants Nassau County, Police Officer Prashant Rane, Police Officer Karl Padilla, Police Officer "John" Cabey, Sergeant James Brown.
John Alexander Genua, Spencer David Shapiro, Office of the Nassau County Attorney, Mineola, NY, Alexander Sendrowitz, Quatela Chimeri, PLLC, Hauppauge, NY, for Defendant Detective "John" Dluginski.
Alexander Sendrowitz, Quatela Chimeri, PLLC, Hauppauge, NY, for Defendant Police Officer John Does Numbers 1-10.
MEMORANDUM & ORDER
GARY R. BROWN, United States District Judge: Plaintiff Demitrios Stratakos ("plaintiff") commenced this action against defendants Nassau County, Police Officer Prashant Rane and Police Officer Karl Padilla for alleged civil rights violations pursuant to 42 U.S.C. § 1983 and pendent state law claims. Presently before the Court is plaintiff's motion for attorneys’ fees and costs. Docket Entry ("DE") 102. For the following reasons, the motion is GRANTED to the extent set forth herein.
BACKGROUND
The facts and procedural history are contained in this Court's Memorandum and Order dated June 24, 2021, familiarity with which is assumed. Stratakos v. Nassau Cty. , No. CV 15-7244 (GRB), 2021 WL 2587722, at *1 (E.D.N.Y. June 24, 2021). As noted therein, the Court awarded plaintiff a total of $230,000, consisting of $115,000 in compensatory damages, $75,000 in punitive damages against defendant Rane and $45,000 in punitive damages against defendant Padilla. Id. at *14.
Plaintiff then filed a motion for attorneys’ fees. DE 102. Plaintiff seeks an award of attorneys’ fees totaling $246,100.00 and costs totaling $41,313.17. Pl.’s Br. 20, DE 102. In their response, defendants: (1) contend that plaintiff failed to contemporaneously keep time records; and (2) challenge plaintiff's fee request as unreasonably high because (i) the rates and hours charged are unreasonable, (ii) billings contain vague entries, and (iii) argue for a reduction based upon limited success. DE 104.
DISCUSSION
Title 42 U.S.C. § 1988 authorizes an attorneys’ fee award to prevailing plaintiffs in a civil rights lawsuit filed pursuant to 42 U.S.C. § 1983. James v. City of Boise , 577 U.S. 306, 306, 136 S.Ct. 685, 193 L.Ed.2d 694 (2016) ; Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 550, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) ; Hensley v. Eckerhart , 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). "When a plaintiff succeeds in remedying a civil rights violation ... he serves ‘as a private attorney general,’ vindicating a policy that Congress considered of the highest priority." Fox v. Vice , 563 U.S. 826, 833, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011) (citations omitted). As such, "plaintiffs may be considered ‘prevailing parties’ for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Farrar v. Hobby , 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley , 461 U.S. at 433, 103 S.Ct. 1933 ); see also Texas State Teachers Ass'n v. Garland Indep. Sch. Dist. , 489 U.S. 782, 791, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). The Supreme Court has described this standard as "generous" since nominal damages of one dollar are enough to bring plaintiff across the "prevailing party" threshold. Farrar , 506 U.S. at 112, 113 S.Ct. 566 ; see also Barbour v. City of White Plains , 700 F.3d 631, 634 (2d Cir. 2012) (citing Farrar , 506 U.S. at 115, 113 S.Ct. 566 ).
Here, plaintiff qualifies as a "prevailing party" under § 1988 as plaintiff established Fourth Amendment violations of excessive force and assault and battery, failure to intervene, false arrest, false imprisonment, and malicious prosecution. Stratakos , 2021 WL 2587722, at *8-11. This decision reversed an earlier summary judgment order dismissing the claims of false arrest, false imprisonment, and malicious prosecution, and condemned "the fraudulent nature of the evidence submitted by defendants at summary judgment." Id. at *10. There can be little question as to the extent of plaintiff's success, which was substantial. Therefore, the remaining issue concerns the amount of a "reasonable" fee award to plaintiff. See Hensley , 461 U.S. at 433, 103 S.Ct. 1933 ; see also Farrar , 506 U.S. at 114-15, 113 S.Ct. 566 ("In some circumstances, even a plaintiff who formally ‘prevails’ under § 1988 should receive no attorney's fees at all.").
"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 v. Metro-North R.R. Co. , 658 F.3d 154, 166 (2d Cir. 2011). "The lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable’ attorney's fee." Perdue , 559 U.S. at 553, 130 S.Ct. 1662 ; see also Millea , 658 F.3d at 167. "[T]he lodestar method produces 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, 130 S.Ct. 1662. "The reasonable hourly rate is the rate a paying client would be willing to pay ... bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Lilly v. City of New York , 934 F.3d 222, 231 (2d Cir. 2019).
"The burden is on the party seeking attorney's fees to submit sufficient evidence to support the hours worked and the rates claimed." Maldonado v. Srour , No. 13-CV-5856 (ILG)(JO), 2016 WL 5864587, at *1 (E.D.N.Y. Oct. 6, 2016). "The moving party must support its application by providing contemporaneous time records that detail for each attorney, the date, the hours expended, and the nature of the work done." Riley v. City of New York , No. 10-CV-2513 (MKB), 2015 WL 9592518, at *2 (E.D.N.Y. Dec. 31, 2015) (quoting N.Y.A.R.C., Inc. v. Carey , 711 F.2d 1136, 1148 (2d Cir. 1983) (internal quotation marks omitted)). "District courts have broad discretion, using their experience with the case, as well as their experience with the practice of law, to assess the reasonableness of each component of a fee award." Feltzin v. Union Mall, LLC , 393 F. Supp. 3d 204, 212 (E.D.N.Y. 2019) (citation omitted).
Attorney Rates and Hours
The Second Circuit has instructed district courts to consider "all case-specific variables" including factors set forth in Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron , 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989), in determining the reasonable hourly rate. Lilly , 934 F.3d at 230. The Court "need not robotically ‘recite and make separate findings as to all twelve of the Johnson factors.’ " Vanacore v. Expedite Video Conferencing Servs., Inc. , No. 14-CV-6103 (GRB), 2019 WL 96243, at *1 (E.D.N.Y. Jan. 3, 2019) (quoting L.I. Head Start Child Dev. Servs., Inc. v. Econ. Opportunity Comm'n of Nassau Cty., Inc. , 865 F. Supp. 2d 284, 291 (E.D.N.Y. 2012), aff'd , 710 F.3d 57 (2d Cir. 2013), and amended , 956 F. Supp. 2d 402 (E.D.N.Y. 2013) ); see also Lilly , 934 F.3d at 233 ("strict application of the Johnson method of calculating attorney's fees used by the Fifth Circuit is too imprecise and variable to be reliable...."). "[T]he most critical factor in a district court's determination of what constitutes a reasonable attorneys’ fee in a given case is the degree of success obtained by the plaintiff." Konits v. Karahalis , 409 F. App'x 418, 421 (2d Cir. 2011).
The twelve Johnson factors are: "(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." Lilly , 934 F.3d at 228 (citing Johnson , 488 F.2d at 714 ).
This Court also follows the Second Circuit's "forum rule," which "generally requires use of the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee." Simmons v. N.Y.C. Transit Auth. , 575 F.3d 170, 174 (2d Cir. 2009). Under the "forum rule," this Court uses the prevailing hourly rate in the Eastern District of New York in calculating the reasonable hourly rate. Torcivia v. Suffolk Cty. , 437 F. Supp. 3d 239, 250-59 (E.D.N.Y. 2020). In recent years, courts in this district have awarded fees in the Eastern District of New York at an hourly rate of $200 to $450 per hour for partners, $200 to $325 for senior associates, and $100 to $200 for junior associates. Crews v. County of Nassau , No. 06-CV-2610 (JFB), 2019 WL 6894469, at *7 (E.D.N.Y. Dec. 18, 2019). "Ultimately, however, in light of the numerous factors that courts in this circuit consider to determine a reasonable hourly rate, the range of reasonable attorney fee rates in this district depends on the type of case, the nature of the litigation, the size of the firm, and the expertise of its attorneys." Id. (internal quotation marks and citations omitted).
"The party seeking attorney's fees also bears the burden of establishing that the number of hours for which compensation is sought is reasonable." Custodio v. Am. Chain Link & Constr., Inc. , No. 06-CV-7148 (GBD) (HBP), 2014 WL 116147, at *9 (S.D.N.Y. Jan. 13, 2014) (citation omitted). "Hours that are excessive, redundant, or otherwise unnecessary, are to be excluded, and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application." Id. (internal quotation marks and citations omitted). Further, while ordinarily when "an attorney fails to keep contemporaneous records, a motion for fees must ordinarily be denied in its entirety," Ganci v. U.S. Limousine Serv. Ltd. , 10-CV-3027, 2015 WL 1529772, at *3 (E.D.N.Y. Apr. 2, 2015), "New York courts have specifically rejected the ‘hard and fast rule that reconstructed time records can never serve as a basis for compensation’ in favor of wider trial court discretion in evaluating fee petitions." Riordan v. Nationwide Mut. Fire Ins. Co. , 977 F.2d 47, 53 (2d Cir. 1992). Finally, when considering a fee application, the Court "does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties." Gierlinger v. Gleason , 160 F.3d 858, 876 (2d Cir. 1998) (internal quotation marks and citation omitted).
After careful consideration of the parties’ briefings, there are questions related to rates and hours charged. Notably, Plaintiff's prior counsel failed to keep contemporaneous time records, and Plaintiff's current counsel spent approximately 200 hours on post-trial briefing and nearly sixty hours drafting his fee application, both patently excessive. DE 104 at 9, 18, 19. Given the broad latitude afforded to the court in resolving such disputes, see Feltzin , 393 F. Supp. 3d at 212 (noting the "broad discretion" district courts have to assess the reasonableness of each component of a fee award), see also Fox , 563 U.S. at 838, 131 S.Ct. 2205 (citation omitted) ("the determination of fees ‘should not result in a second major litigation’ "), the Court finds that an across-the-board reduction of the attorneys’ fees sought by plaintiff will serve as a reasoned estimate of these excessive charges and the issues regarding rates. See Kirsch v. Fleet St., Ltd. , 148 F.3d 149, 173 (2d Cir. 1998) ("Hours that are ‘excessive, redundant, or otherwise unnecessary,’ are to be excluded, and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed ‘as a practical means of trimming fat from a fee application.’ ") (quoting Hensley , 461 U.S. at 434, 103 S.Ct. 1933 ); see also Lunday v. City of Albany , 42 F.3d 131, 134 (2d Cir. 1994) ("We do not require that the court set forth item-by-item findings concerning what may be countless objections to individual billing items."). A substantial reduction is called for – defendants have suggested that a 30% reduction would be appropriate, and the Court agrees that this figure would adequately address the excessive hours charged. DE 104 at 12. Thus, attorneys’ fees sought are hereby reduced from $246,100.00 to $172,270. The court finds such a reduction adequately accounts for the issues raised by defendants.
The record here could, arguably, support a larger reduction, but the amount sought by defendants’ counsel proves sufficient.
Defendants seek further reduction based upon claims of limited success, but given the important rights vindicated here, such a reduction is not warranted. Stratakos , 2021 WL 2587722, at *1 ("Notwithstanding efforts by the two defendant police officers to coordinate and falsify testimony and sworn statements, the evidence demonstrated that those officers – acting contrary to well-established training and policies of the Nassau County Police Department – arrested the plaintiff without legal basis and that one officer viciously assaulted him, resulting in injury. That the motivation for this attack seems to have been merely to prevent plaintiff from contacting the officers’ supervisor with a minor complaint against them renders the attack both malicious and unfathomable."). Moreover, where, as here, the claims are interrelated and based on the same core of facts, the Court "has the discretion to award fees for the entire litigation where the claims are inextricably intertwined and involve a common core of facts or [are] based on related legal theories." Kerin v. U.S. Postal Serv. , 218 F.3d 185, 194 n.6 (2d Cir. 2000) (internal quotation marks and citation omitted); see Murphy v. Lynn , 118 F.3d 938, 952 (2d Cir. 1997) (holding "a plaintiff's lack of success on some of his claims does not require the court to reduce the lodestar amount where the successful and the unsuccessful claims were interrelated and required essentially the same proof").
Costs
Federal Rule of Civil Procedure 54 provides that, "unless a federal statute, these rules, or a court order provides otherwise, costs – other than attorneys’ fees – should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(1) (" Rule 54"); see Choi v. City of New York , No. 10-CV-6617, 2013 WL 1387021, at *2 (S.D.N.Y. Apr. 5, 2013) (noting that an award of costs "against the losing party is the normal rule obtaining in civil litigation") (internal quotation marks omitted). The items that may be included in a cost award pursuant to Rule 54 are defined by statute, specifically 28 U.S.C. § 1920 (" Section 1920"). Section 1920 lists six categories of recoverable costs:
(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under [ 28 U.S.C. § 1923 ];[3] and (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [ 28 U.S.C. § 1828 ].
28 U.S.C. § 1920. A court does not have discretion to tax costs beyond that set forth in Section 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc. , 482 U.S. 437, 441-42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) (the court is not authorized "to tax whatever costs may seem appropriate"). "Rather, absent a contract or statute that authorizes a court to award additional costs to the prevailing party, only those costs that are set out in Section 1920 are properly taxable." Endo Pharmaceuticals, Inc. v. Amneal Pharmaceuticals, LLC , 331 F.R.D. 575, 579 (S.D.N.Y. 2019) (citing Crawford Fitting , 482 U.S. at 445, 107 S.Ct. 2494 ). The party seeking costs thus "bears the burden of establishing that each expense it seeks to recover ‘falls within an allowable category of taxable costs.’ " Id. at 578-79 (internal brackets omitted) (quoting Natural Organics, Inc. v. Nutraceutical Corp. , No. 01-CV-384, 2009 WL 2424188, at *2 (S.D.N.Y. Aug. 6, 2009) ). The Court cannot award costs outside the statute's enumerated categories, though it retains discretion to exclude costs that fall within those categories, where appropriate. Taniguchi v. Kan Pacific Saipan, Ltd. , 566 U.S. 560, 572-73, 132 S.Ct. 1997, 182 L.Ed.2d 903 (2012).
Plaintiff seeks costs of $41,313.17 for the following expenses: (i) $33,998.46 in expert fees, (ii) $2,517.84 in "necessary computer equipment for virtual trial," (iii) $3,352.12 for transcription services, (iv) $400.00 in filing fees, (v) $946.75 to Veritext; and (vi) $98.00 for a criminal history report. DE 102. Defendants contest $36,516.30 in costs relating to expert fees and computer equipment. DE 104 at 23-25. The Second Circuit has held that "attorney's fees awards include those 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). However, Section 1988 does not "convey the authority to shift experts’ fees to the losing party." Wilder v. Bernstein , 975 F. Supp. 276, 287 (S.D.N.Y. 1997). While § 1988(b) authorizes the court to award "a reasonable attorney's fee as part of the costs," " ‘costs’ is a term of art that generally does not include expert fees." Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy , 548 U.S. 291, 297, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006). Thus, plaintiff cannot recover expert fees as part of his costs "because § 1988 does not allow the shifting of expert witness fees in § 1983 actions." Walker v. City of New York , No. 11-CV-314 (CBA), 2015 WL 4568305 at *12 (E.D.N.Y. July 28, 2015) ; see also W. Virginia Univ. Hosps., Inc. v. Casey , 499 U.S. 83, 102, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). Accordingly, the Court denies plaintiff's request to shift its expert fees to defendants and instead awards only the $40 statutory witness fee authorized under 28 U.S.C. § 1821(b). Walker , 2015 WL 4568305, at *12.
While Congress did abrogate Casey by amending § 1988, which is now codified as § 1988(c), "because that subsection speaks only to suits under § 1981 or § 1981a, it authorizes expert-fee shifting only in those instances and leaves intact the Casey rule with respect to all other claims, including those under § 1983." Walker , 2015 WL 4568305, at *13 ; see also Wilder , 975 F. Supp. at 287 n.12.
28 U.S.C. § 1821(a)(1) authorizes fees to be paid for "attendance at any court of the United States ... or before any person authorized to take his deposition...." Pursuant to the time records, DE 102-4, plaintiff's two experts were both deposed, and both testified at trial. As such, expert fees statutorily authorized totals $160.
Nor does Section 1988 – or the bounds of common sense – authorize awarding the costs of computer equipment purchased in anticipation of trial. While it is true that trial of this case was conducted remotely as a result of the COVID-19 pandemic, plaintiff's request for thousands of dollars to purchase a computer, a monitor, a keyboard, a mouse and mouse pad, a web cam, a mic and speaker system runs far outside the legally allowable categories. DE 102-5, 15-18. Not a single item described falls within the purview of Section 1920 or Local Rule 54.1. "Remote trial costs are not mentioned in any category of costs under 28 U.S.C. § 1920 or Local Rule 54.1." Jacquety v. Tena Baptista , No. 19-CV-9642 (RWL), 549 F.Supp.3d 293, 299 (S.D.N.Y. July 19, 2021) ("Even a generous reading of the cost categories in both of 28 U.S.C. § 1920 and Local Rule 54.1 does not include the costs of remote trial hosting."); Chain v. North East Freightways, Inc. , 16-CV-3371 (JCM), 2021 WL 1611953, at *3 (S.D.N.Y. April 26, 2021) ("[E]ven the broadest interpretation of Local Rule 54.1(c)(6) does not encompass remote trial hosting."). In fact, the sole case Plaintiff cites to support reimbursement of this expenditure holds the opposite. DE 108 at 1 (citing Palm Bay Int'l, Inc. v. Marchesi Di Barolo S.P.A. , 285 F.R.D. 225, 239 (E.D.N.Y. 2012) ) ("the Court finds no support in the statute, rules or precedents for taxable costs for renting computer equipment"). Moreover, these equipment purchases, representing capital expenditures, are not costs that could reasonably be charged to a client for a particular litigation. Finally, it is difficult to believe that a law firm could have functioned in 2021, even absent the pandemic, without having acquired computer equipment. As such, plaintiff's request to tax the costs of computer equipment necessary to conduct a virtual trial is denied. Accordingly, the costs sought are reduced from $41,313.17 to $4,956.87.
CONCLUSION
It is hereby ORDERED that defendants shall pay plaintiff attorneys’ fees and costs in the amounts detailed herein.
SO ORDERED.