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ROSS v. SALTMARSH

August 25, 1981

Paulette ROSS, et al., Plaintiffs,
v.
Donald W. SALTMARSH, et al., Defendants



The opinion of the court was delivered by: LOWE

MEMORANDUM OPINION and ORDER

This Court, pursuant to Fed.R.Civ.P. 23(e), approved a proposed settlement of all claims concerning the merits of this civil rights class action, Ross v. Saltmarsh, 500 F. Supp. 935 (S.D.N.Y.1980). Plaintiffs' application for an award of attorneys' fees, which defendants oppose, was referred to Magistrate Raby *fn1" for an evidentiary hearing to consider the extent and nature of the legal services rendered by plaintiffs' counsel and to report on the amount of fees and costs to be awarded plaintiffs' counsel for those services. *fn2"

 I. Magistrate's Findings

 Based on the evidence and testimony received at the evidentiary hearing, Magistrate Raby made the following findings and recommendations:

 
1. Plaintiffs are a "prevailing party" within the meaning of 42 U.S.C. § 1988, the civil rights attorneys' fees statute. *fn3"
 
2. The lodestar amount *fn4" of plaintiffs' fee award should be adjusted to reflect:
 
(a) a lower hourly rate for members of plaintiffs counsel who were not yet admitted to the bar;
 
(b) a lower rate of reimbursable compensation for attorney Richard Sobol;
 
(c) a penalty of a ten percent (10%) reduction from the total charges for those members of plaintiffs' counsel who totally reconstructed their time records, and a five percent (5%) reduction for those members who partially reconstructed their records;
 
3. Plaintiffs' counsel did not engage in any duplicative representation that would warrant a reduction in the compensable time charged.
 
4. The compensable travel time of plaintiffs' counsel should be reduced. *fn5"
 
5. No reduction should be made for the few ascertainable instances of time charges that were administrative or clerical in nature.
 
6. The total amount of time charges sought by plaintiffs' counsel for litigating the attorneys' fee claim should be awarded.
 
7. The request of plaintiffs' counsel for costs and expenses, i. e., disbursements and time charges for paralegals and law students, should be awarded. However, reimbursement for the services rendered plaintiffs' counsel by two data analysts should be denied.
 
8. An increment to the lodestar, or bonus, should not be awarded.
 
9. In sum, plaintiffs' petition for attorneys' fees and costs should be granted in the amount of $ 227,727.45.

 Both parties have filed objections to the Magistrate's findings and recommendations. *fn6"

 II. Defendants' Objections

 A. Prevailing Party

 Defendants' first objection is that the terms and conditions of the Court approved Consent Decree bar a determination that plaintiffs are the prevailing party in this action. Specifically, defendants refer to certain language in the Decree which provides that defendants' agreement to the settlement does not constitute a waiver of either plaintiffs' claim for attorneys' fees or any defense defendants may have against that claim. *fn7"

 Although defendants have expressly reserved the right to object to plaintiffs' fee application, the language in the Consent Decree does not affect the Court's determination that plaintiffs are the prevailing party within the meaning of § 1988. In Maher v. Gagne, 448 U.S. 122, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1980), the United States Supreme Court set forth the following standard " "for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief.' " Id. at 129, 100 S. Ct. at 2575 (quoting S.Rep.No. 94-1011, p.5 (1976), U.S.Code Cong. & Admin.News, 5908, 5912. As a result of this litigation plaintiffs obtained preliminary injunctive relief against defendants' pattern of continuing violations of New York State's procedures for suspending students, established by § 3214 of the New York Education Law. *fn8" Further, the Decree settling the action provides a comprehensive plan for implementing procedural safeguards against racial discrimination in the City of Newburgh School District's disciplinary process. Since the relief obtained by plaintiffs favorably resolved their claims, *fn9" the Court finds that plaintiffs are a prevailing party within the meaning of § 1988.

 B. Multiplicity of Non-Productive Hours

 Secondly, defendants argue that there was a multiplicity of nonproductive hours by plaintiffs' counsel which requires a reduction in the fee award. Specifically, defendants allege that the lodestar figure requested by plaintiffs should be substantially reduced because of an alleged (1) multiplicity of lead counsel, (2) lack of experience and motivation of said counsel, (3) turnover of attorneys, (4) piecemeal conduct of this litigation, and (5) lack of coordination between co-counsel.

 (1) multiplicity of lead counsel

 An examination of the record indicates that over the six-year history of this case, several attorneys had primary responsibility for the litigation. This responsibility was shared, in part, due to the division of work between plaintiffs' counsel, the Mid-Hudson Valley Legal Services ("MH") and the Children's Defense Fund ("CDF").

 The director of complex litigation at MH, William Crain ("Crain"), *fn10" testified that approximately seven months after the action was commenced MH sought out and retained CDF because (1) CDF had substantial expertise and background in class action litigation regarding the rights of children, and (2) MH had limited staff and resources to commit to an action which was "developing into a long complicated action" involving several "broad issues." *fn11" According to the testimony of Richard Sobol ("Sobol"), the attorney who committed CDF's financial resources and staff to this litigation, it was specifically CDF's interest in the subject area which resulted in the joint agreement for MH and CDF to litigate as co-counsel. *fn12"

 Over the six years, four attorneys at MH, each at a different time, were lead counsel for MH's part of the litigation; *fn13" at CDF, three attorneys were lead counsel for CDF's part. *fn14" The changes in counsel were attributable to involvement in other cases requiring significant time and staffing demands, promotions involving substantial increases in administrative and supervisory responsibilities, or career changes involving termination of employment. The Court finds these reasons acceptable for the change in counsel, particularly when balanced against the following considerations: (1) the length of the litigation; *fn15" (2) that there is no evidence that this action was not forthrightly litigated, or that plaintiffs' claims were not amply protected, and (3) plaintiffs' counsel, in litigating this action, maintained an efficient and responsive litigating posture. *fn16"

 (2) lack of experience and motivation of said counsel

 Defendants argue that several of plaintiffs' attorneys lacked the requisite experience to be "lead" counsel and/or motivation to prosecute the case. Defendants specifically cite Magistrate Raby's finding,

 
"(M)id-Hudson and C.D.F. were excellent spawning grounds for neophyte attorneys. The case is notable in that it was prepared and prosecuted essentially by attorneys with little, if any, prior professional experience." *fn17"

 The record reveals that three of plaintiffs' attorneys, with little or no trial experience, had significant responsibility for various aspects of the litigation Harry Witte (MH), Laura Zeisel (MH), and Carol Golubock (CDF). Mr. Witte joined the MH staff in February, 1973 and became involved in this action in November, 1974, approximately one and a half years after his admission to the bar. He testified that between November, 1974 and the beginning of March, 1975, William Crain, the director of litigation at MH *fn18" and an attorney with over eight years of federal litigation experience, had primary responsibility for the case and directly supervised his involvement. *fn19" "Witte further stated that the increase in his responsibilities at MH in March, 1975 was in terms of time commitment" only. He also testified that from July, 1975 to December, 1975, when he was the managing attorney at MH's Newburgh office, "there was very little done" on the case and that he "claimed no time for that." *fn20"

 Laura Zeisel had primary responsibility for the case at MH's Newburgh office in July, 1976, approximately five months after her admission to the bar. She was appointed managing attorney of the Newburgh office nine months after her admission. *fn21" Ms. Zeisel testified that in mid-1976 she supervised herself under the direction of Richard Sobol, an attorney with sixteen years of active practice primarily in the area of federal civil litigation *fn22" who was associated with CDF at the time and lead counsel on the case. *fn23" The record shows that during mid-1975 to February, 1979, Sobol was primarily responsible for all substantive decisions in the litigation. *fn24" Zeisel's role as "local" counsel at MH involved regular communications with plaintiff, review of discovery documents, and drafting some of plaintiff's papers in support of ...


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