Opinion
76 Civ. 2125 (RWS).
February 7, 2007
Attorneys for Plaintiffs, PUERTO RICAN LEGAL DEFENSE EDUCATION FUND, INC., New York, New York, By: Foster Maer, Esq.
Attorneys for Defendants, NEW YORK CITY HOUSING AUTHORITY, New York, NY, By: Richardo Elias Morales, Esq., General Counsel, Rosanne R. Pisem, Esq., Of Counsel.
OPINION
The plaintiffs, Williamsburg Fair Housing Committee, et al. (the "Committee" or the "Plaintiffs") have moved for an award of counsel fees incurred in monitoring the 2002 settlement of this class action against the defendants, the New York City Housing Authority, et al. (the "Authority" or "Defendants"), in which the United Jewish Organizations of Williamsburg, Inc., et al. (the "Organizations" or the "Intervenors") had intervened. For the reasons set forth below, the motion is granted, and the requested fee is reduced.
This litigation has been difficult from its inception in 1976. The issues have sharply divided the community along social, religious and ethnic lines. The final resolution and settlement have been difficult to achieve as this application demonstrates. It is devoutly hoped that this will be the terminal issue to be resolved.
Prior Proceedings
The course of this action is principally marked by the following decisions: Williamsburg Fair Hous. Comm., et al. v. The New York City Hous. Auth., et al., 73 F.R.D. 381 (S.D.N.Y. 1976) ("Williamsburg I"); Williamsburg Fair Hous. Comm., et al. v. The New York City Hous. Auth., et al., 450 F. Supp. 602 (S.D.N.Y. 1978) ("Williamsburg II"); Williamsburg Fair Hous. Comm., et al. v. The New York City Hous. Auth., et al., 493 F. Supp. 1225 (S.D.N.Y. 1980) ("Williamsburg III"); Williamsburg Fair Hous. Comm., et al. v. The New York City Hous. Auth., et al., No. 76 Civ. 2125(RWS), 2005 WL 736146 (S.D.N.Y. Mar. 31, 2005) ("Williamsburg IV"); and Williamsburg Fair Hous. Comm., et al. v. The New York City Hous. Auth., et al., No. 76 Civ. 2125(RWS), 2005 WL 2175998 (S.D.N.Y. Sept. 9, 2005) ("Williamsburg V").
In this action, the Committee challenged, among other things, lease successions in three of the Authority's developments in the Williamsburg section of Brooklyn. The Authority, the Committee and the Intervenors signed a settlement agreement on May 30, 2002, which the Court "so ordered" on September 26, 2002 (the "Settlement"). The Settlement remained in effect for more than three years, until November 25, 2005. (Decl. of Gary Nester in Opp'n to Pls.' Motion for Attys' Fees ("Nester Decl.") Ex. A.)
Pursuant to the Settlement, the parties agreed to terminate an earlier consent decree in the matter and established, among other things, procedures for review of lease successions during the Settlement period at the three Williamsburg developments. On a quarterly basis, the Authority was to submit to an independent arbiter (the "Arbiter") a list of all succession rights the Authority had tentatively approved during the quarter, accompanied by documents and information the Authority used to evaluate and approve them (the "Administrative Record"). Copies would be provided to counsel to the Committee, written comments or objections could be submitted, and the other parties had the opportunity to respond. (Id.) The Arbiter could then inform the Authority that he was reconsidering succession, providing the parties with an additional opportunity to make written submissions. Within forty-five days of the close of all submissions, the Authority's succession determination would be deemed final unless the Arbiter informed the Authority that, based on the Administrative Record as a whole, its decision to grant succession was without a reasonable basis. (Id. ¶ 4.)
In February 2003, the Plaintiffs' counsel moved for attorney's fees in connection with the preceding litigation and the negotiations culminating in the Settlement. (Nester Decl. ¶ 7.)
In March 2005, the Court granted the attorney's fees motion in part. (Nester Decl. ¶ 8.) In May 2005, approximately six months prior to the expiration of the Settlement, the Plaintiffs moved for reconsideration. (Id.) By the time the motion was fully submitted on May 18, 2005, the Authority had submitted thirty-one tentative succession cases to the Arbiter for review, representing more than eighty-two percent of the thirty-eight cases submitted in total. (Id. ¶ 8 n. 2.)
In October 2005, the parties served notices of appeal and cross-appeal following this Court's determination of the Plaintiffs' reconsideration motion. (Nester Decl. ¶ 9.) The parties withdrew their appeals as of March 2006, after settling the issue concerning the amount of fees to be paid to the Plaintiffs' counsel.
During the period following the Settlement, the Authority submitted a total of thirty-eight tentative succession determinations to the Arbiter, commencing with the first quarter of 2003 and ending in February 2006. (Nester Decl. ¶¶ 12, 15.) The Arbiter upheld succession in fifteen of the nineteen cases challenged. (Id. ¶ 16.) In another three cases, the Committee's objections were withdrawn after the Authority submitted written responses. (Id.) In the one remaining succession case to which the Plaintiffs objected, the Authority withdrew its preliminary determination and remanded it to the Development for further evaluation. (Id.)
The instant motion for fees incurred during this process was initiated on June 30, 2006, and marked fully submitted on November 16, 2006. The Application
For monitoring the Settlement, the Committee seeks fees for the work performed by their counsel in the following amounts.Hours Hourly Rate 375 TOTAL
Alan Levine 72.4 $375 $27,150 Foster Maer 20.1 $375 7,538 2.5 $150 $35,063 Consistent with the capacity of this litigation for constant renewal, the application also includes a request for the work performed in connection with the fee application, calculated as $18,337.50 which the Plaintiffs have reduced to $16,587.50 in order to maintain proportionately. (Supplemental Affirmation of Alan Levine ¶ 7.)The Application Will Be Allowed
The Authority has opposed the motion as untimely under Rule 54(d)(2)(B), Fed.R.Civ.P., which "requires expedition in seeking attorneys' fees." In re Paineeebber Ltd. P'ships Litig., No. 94 Civ. 8547(SHS), 2003 WL 21787410, at *7 (S.D.N.Y. Aug. 4, 2003). Notwithstanding Rule 54's strict time limits, Federal Rule of Civil Procedure 6(b) permits district courts to extend deadlines at their discretion, with or without a motion, "if request therefor is made before the expiration of the period originally prescribed[.]" Rule 6(b), Fed.R.Civ.P. If the period has expired, a court may still extend the deadline "upon motion . . . where the failure to act was the result of excusable neglect[.]" Id. A district court determines whether a party's neglect is excusable by taking into account "'[1] [t]he danger of prejudice to the [opposing party], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was in the reasonable control of the movant, and [4] whether the movant acted in good faith.'"Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 227 (2d Cir. 2004) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).
The Committee has cited cases in which courts have awarded fees for post-judgment monitoring activities which were awarded months and years after the judgment. See, e.g., Wilder v. Bernstein, 975 F. Supp. 276 (S.D.N.Y. 1997) (awarding compensation for work relating to post judgment monitoring of the settlement from January 1, 1996, to June 20, 1996, where final judgment was entered on April 28, 1987); Gautreux v. Chicago Hous. Auth., No. 66 C 1459, 2005 WL 1910849 (N.D. Ill. Aug. 9, 2005) (awarding plaintiffs' request for fees for the period from August 1, 2001, to July 31, 2003, on August 9, 2005); Rolland v. Romney, 292 F. Supp. 2d 268 (D. Mass. 2003) (monitoring was eligible for compensation where a third motion for monitoring fees was made on August 27, 2002, which covered period from January 1 through May 31, 2001); Albro v. County of Onondaga, No. 85-CV-1425, 1998 WL 52013 (N.D.N.Y Feb. 4, 1998) (awarding fees request on February 4, 1998, for work undertaken from 1990 through 1998).
Additionally, in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546 (1986), the Supreme Court held that:
the work done by counsel in these two phases was as necessary to the attainment of adequate relief for their client as was all of their earlier work in the courtroom which secured Delaware Valley's initial success in obtaining the consent decree.Id. at 558. Since Delaware Valley, courts have upheld awards of attorneys fees for monitoring work that ensures implementation of the provisions of a consent decree. See, e.g., Martin v. Hadix, 527 U.S. 343, 347-49 (1999) (outlining awards of attorneys' fees for post-decree monitoring in two prisoner lawsuits); New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1145 (2d Cir. 1983) (remanding due to excessiveness of fees, but permitting for post-decree fees); Grier v. Goetz, 421 F. Supp. 2d 1061, 1076 (M.D. Tenn. 2006) ("[W]hen post-decree monitoring work protects the relief awarded under the consent decree, ensures compliance with the decree, or is critical to the vindication of the plaintiff's rights under the consent decree, compensation for the activity is proper within the trial court's discretion." (citing Delaware Valley, 478 U.S. at 561)); King v. Illinois State Bd. Of Elections, 410 F.3d 404, 420-21 (7th Cir. 2005) (same (citing Delaware Valley, 478 U.S. 546)); Cody v. Hillard, 304 F.3d 767, 774-75 (8th Cir. 2002) (same); Walker v. U.S. Dep't of Hous. Urban Dev., 99 F.3d 761, 766 (5th Cir. 1996) (same).
Here, pursuant to the Settlement, the Authority's files concerning all proposed lease successions were to be submitted to the Arbiter who, in turn, sent copies of the files to counsel for the Committee and the Organizations. Monitoring activity by counsel under the Settlement was clearly contemplated.
The better practice would have been to include in the Settlement a provision for monitoring fees so that the negotiations between the parties in March 2006 could have been complete and final. However, the submission of this application thirty-eight days after the final decision of the Arbiter which required monitoring is permitted in the exercise of the Court's discretion considering the time involved in the delay, the good faith of the application, and the lack of prejudice to the Authority in its ability to defend its position. The desirability of supporting monitoring activities, contemplated by the Settlement and as indicated by the authorities cited above, outweighs the delays of the Committee and the Organizations.
The Application is Reduced
The ruling on the initial fee application based the fee award on the "lodestar amount," calculated by (1) determining a reasonable hourly rate for each attorney; (2) excluding excessive, redundant, or otherwise unnecessary hours; and (3) excluding hours spent on severable unsuccessful claims.Williamsburg IV, at *9; see also Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) ("The district court also should exclude from this initial fee calculation hours that were not 'reasonably expended.'" (citing S. Rep. No. 94-1011, at 6 (1976))).
Using the same calculation here, the fee award is reduced based on the exclusion of excessive, redundant or otherwise unnecessary hours. In general, courts deny or reduce fee awards seeking compensation for duplicative or excessive attorney time. See,e.g., Winkler v. Metropolitan Life Ins. Co., No. 03 Civ. 9656(SAS), 2006 WL 2347826, at *2 (S.D.N.Y. Aug. 10, 2006) (spending three days preparing ten-page reply brief held excessive where research already completed for moving brief, and where senior attorney failed to delegate work to associate with lower billing rate); Guardians Ass'n of Police Dep't of New York, Inc. v. City of New York, No. 99 Civ. 4960(LAK), 2004 WL 1238376, at *1-2 (S.D.N.Y. June 2, 2004) (reducing fees drastically where prevailing attorneys performed limited tasks of drafting complaint and amended complaint; monitoring progress of much broader, related class action; and negotiating settlement in context of class action settlement); aff'd, 133 F. App'x 785 (2d Cir. 2005); Queenie, Ltd. v. Nygard Int'l, 204 F. Supp. 2d 601, 609 (S.D.N.Y. 2002) ("Given the straightforward factual issues and the absence of novel legal issues or case dispositive motions, to shift attorney's fees for this number of hours would be unreasonable"); Mr. X. v. New York State Educ. Dep't, 20 F. Supp. 2d 561, 564 (S.D.N.Y. 1998) (finding time entries duplicative and excessive where presence of both attorneys at hearings not necessary).
Here, all Administrative Records submitted to the Arbiter contained essentially the same documents, with which the parties, having litigated this matter for years, were thoroughly familiar. (Nester Decl. ¶ 27.) The Authority's counsel spent thirty to forty-five minutes, or perhaps an hour, reviewing each succession request. (Id. ¶ 28.) Levine, one of the Plaintiffs' attorneys, has described spending "two hours or so" reviewing each Administrative Record, and Maer, another of the Plaintiffs' attorneys, asserts that he spent many hours reviewing as well. (See Affirmation of Alan Levine in Supp. Of Motion for Attys' Fees for Monritoring Terms of Settlement Agreement ¶ 14; Affirmation of Foster Maer in Supp. of Motion for Attys' Fees for Monitoring Terms of Settlement Agreement ¶ 3.) Moreover, Levine and Maer duplicated their effort, conceding that "[a]ll files were reviewed by Foster Maer and Alan Levine, as well as by Carmen Calderon, a co-chair of plaintiff Williamsburg Fair Housing Committee." (Pls.' Mem. 2.)
Counsel also spent excessive time responding to lease successions submitted to the Arbiter. Of the twenty-four letters the Authority received in objection to nineteen proposed successions, nine consisted of a single page. (Nester Decl. ¶ 30.)
Additionally, Plaintiffs' counsel made repetitive and frivolous objections to successions. For example, Plaintiff's counsel ultimately withdrew their objections in three lease succession cases to which they had initially objected (Nester Decl. ¶ 16) and the Arbiter rejected other objections made by counsel. Plaintiffs' counsel also alleged, on ten occasions, that Administrative Records were incomplete and the Arbiter rejected those allegations. On three occasions, counsel improperly relied on portions of the Authority's Applications Manual, resulting in the Arbiter's rejection of those objections as well. (Id. ¶ 20.)
As this Court cautioned in ruling on the Plaintiffs' initial fee application, "[f]ee applicants should not "'lump several services or tasks into one time sheet entry because it is then difficult . . . for a court to determine the reasonableness of the time spent on each of the . . . services or tasks provided. . . . It is the responsibility of the applicant to make separate entries for each activity."'" Williamsburg IV, at *9 (quoting Wilder, 975 F. Supp. at 286 (quoting In re Poseidon Pools of Am., Inc., 180 B.R. 718, 731 (Bankr. E.D.N.Y. 1995) (internal quotations and citation omitted))). This application also included time records clustering various tasks together, thus rendering it difficult to determine the actual time spent on a specific activity. Levine's time records, for example, reflect 34.1 hours of clustered tasks, and Maer's contain 12.1 hours of clustered tasks (see Nester Decl. ¶ 24), representing more than $17,000 in fees at the rate of $375 per hour.
Where, as here, time entries are duplicative or vague, an across-the-board reduction in the number of hours spent, with a concomitant decrease in the fee award, is well within the court's discretion. McDonald v. Pension Plan of NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006) ("A district court may exercise its discretion and use a percentage deduction "'as a practical means of trimming fat from a fee application"'" (citations omitted)); Guardians Ass'n, 133 F. App'x 785, at *1-2 (upholding district court's finding that attorney time exceeded what was reasonable and justifiable, as well as court's eighty percent across-the-board reduction in fee amount sought); Am. Camping Ass'n v. Camp Shane, No. 06 Civ. 0716(CM), 2006 WL 1982770, at *2-4 (S.D.N.Y. June 16, 2006) (awarding significant across-the-board reduction where matter was overstaffed; attorneys sought ten times the amount of liquidated damages contract provided; and action was short-lived).
Under these circumstances, the requested fees of $51,650.50 will be reduced by just over fifty percent to $25,000.00.
Conclusion
For the reasons set forth herein, the motion is granted, and the requested fee is reduced to $25,000.00.
It is so ordered.