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LYONS v. CUNNINGHAM

October 19, 1983

M. CECIL LYONS and TENNER LYONS, Plaintiffs,
v.
JOHN J. CUNNINGHAM, WM. CIUROS, JR., FRITZ FAWCETT, CLEVELAND BRYCE, ANTHONY LARKIN, MICHAEL PASTENA, FRANKLIN D. WOOD, JOSEPH JUDGE, and THE CITY OF NEW YORK, Defendants.



The opinion of the court was delivered by: CANNELLA

MEMORANDUM AND ORDER

CANNELLA, D.J.:

 Plaintiffs' motion for costs and attorneys' fees is granted in part and denied in part. 42 U.S.C. § 1988.

 Defendants' cross-motion for costs and attorneys' fees is granted in part and denied in part. Fed. R. Civ. P. 68.

 FACTS

 After an eight-day trial, the jury found that defendant John J. Cunningham and Franklin D. Wood violated the constitutional rights of Larry Lyons and awarded his parents, plaintiffs Tenner and M. Cecil Lyons, $12,000 each for their mental anguish and sorrow. In addition, the jury also determined that defendant Fritz Fawcett violated Larry Lyons' constitutional rights but that he established a good faith defense. The jury further found that plaintiffs failed to establish their claims against the remaining individual defendants and the City of New York. Finally, the jury decided neither the Estate of Larry Lyons nor Lyons' brother Ronald were entitled to an award of damages.

 On April 7, 1983, the Court denied plaintiffs' motions to amend the judgment and for a new trial and defendants' cross-motion for judgment notwithstanding the verdict and directed plaintiff, as prevailing party, to file appropriate memoranda and affidavits on the question of attorneys' fees. Thereafter, plaintiffs submitted an application for costs and attorneys' fees in the amount of $98,172.90. Plaintiffs' lead counsel, Alan H. Levine seeks $72,625 for 415 hours of work; Levine's former partner, Melvin L. Wulf, seeks $11,988 for 66.60 hours of work; and Robert E. Wilson, a law school graduate but not an admitted attorney, seeks $3,780 for 63 hours of work. In addition, plaintiffs seek the following costs: (1) $1,701.90 for deposition transcripts; (2) $5,250.00 for expert witness fees; and (3) $2,828.00 for daily trial transcripts. To support this request, plaintiffs' attorneys have submitted affidavits generally outlining the hours they spent on this case. Contemporaneous time records, however, were not submitted, although Levine and Wulf stand ready to produce these records if so ordered by the Court. *fn1" Plaintiffs also did not submit documentation to substantiate their other claims for costs. Levine and Wulf are experienced attorneys with extensive backgrounds in civil rights litigation. *fn2"

 Defendants raise several objections to plaintiffs' application and have cross-moved for a limited award of attorneys' fees and costs. Defendants assert that plaintiffs' application should be substantially reduced because: one, plaintiffs achieved limited success in this action; two, plaintiffs' attorneys have not properly ducumented their requests for compensation; three, plaintiffs' attorneys' hourly rates are exorbitant; four, plaintiffs cannot recover expert witnesses' fees; five, plaintiffs' failed to document their claim for deposition and trial transcript costs and show the necessity of these expenses to their case; and six, pursuant to Rule 68, plaintiffs cannot recover any costs, including attorneys' fees, incurred after defendants' offer of judgment in October 1980. Defendants also seek an award of attorneys' fees because they assert the claims against defendants Michael Pastena, Anthony Larkin and Cleveland Bryce were frivolous and vexatious. Similarly, defendants seek an award of attorneys' fees for the time expended defending the claims brought on behalf of Ronald Lyons because allegedly they also were frivolous. Defendants further seek an award of costs for the depositions of plaintiffs' Ronald and Tenner Lyons and costs of the daily trial transcript. Taking all these factors into account, defendants suggest that the Court reduce plaintiffs' request by two-thirds.

 After this action was commenced, the parties earnestly discussed settlement. To this end, the Court was informed by defendants' counsel on January 3, 1980 that the parties had reached a tentative settlement. Apparently, defendants offered to pay plaintiffs $90,000 plus $7,000 in attorneys' fees. *fn3" While plaintiffs and their attorney found this offer to be satisfactory, the Comptroller of the City of New York did not and would only approve a settlement of $50,000, which included an award of attorneys' fees. *fn4" Plaintiffs rejected this offer and defendants' formal offer of judgment for "$50,000 inclusive of attorneys' fees and all costs accrued" *fn5" made on October 20, 1980. The parties then engaged in extensive discovery and motion practice.

 At the time defendants made their offer of judgment, the complaint, commenced by M. Cecil Lyons in his capacity as administrator of the Estate of Larry Lyons, alleged claims of deliberate indifference and negligence against only Cunningham, Fawcett, Larkin, Bryce, William Ciuros, Jr. and the City of New York. In December 1980, defendants amended their answer to assert a good faith defense. *fn6" On July 30, 1981, M. Cecil Lyons was permitted to amend his complaint to allege a cause of action for deprivation of his parental right to raise and enjoy his son. *fn7" The complaint was further amended on November 2, 1981 to assert a claim that the City's budgetary constraints and its failure to provide Larry Lyons with adequate medical attention contributed to his death. *fn8" On November 24, 1981, Larry Lyons' mother, Tenner Lyons, was added as a plaintiff and Pastena, Franklin D. Wood and Joseph Judge were added as defendants. Prior to trial, the Court allowed Ronald Lyons to be joined as a plaintiff.

 DISCUSSION

 The instant motions present significant and complex issues. To simplify the presentation of its rulings, the Court will focus on three questions: First, the extent to which either plaintiffs or defendants are prevailing parties; second, the adequacy and propriety of the parties' respective applications; and third, the effect, if any, defendants' offer of judgment has on plaintiffs' claim for costs and attorneys' fees.

 Prevailing Party

 The Court previously determined that plaintiffs were the prevailing parties. See Memorandum and Order, 79 Civ. 3953 (JMC) at 9 (S.D.N.Y. Apr. 7, 1983). Defendants do not seriously dispute this finding but rather argue that plaintiffs' requested fee must be reduced to reflect the limited success plaintiffs allegedly obtained at trial. Defendants assert that such a reduction is mandated by Hensley v. Eckhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40, 51 U.S.L.W. 4552 (U.S. 1983) ["Hensley "], and McCann v. Coughlin, 698 F.2d 112 (2d Cir. 1983). Plaintiffs, also relying on Hensley, supra, 51 U.S.L.W. at 4555, argue that a reduction is not warranted because they presented essentially one claim based on a common set of facts -- the events which led to Larry Lyons' death.

 The jury's verdict clearly establishes that plaintiffs succeeded on significant issues in this litigation. Moreover, plaintiffs not only were able to convince the jury that they were entitled to an award of money damages for their emotional suffering, but also were able to convince the Court that their claims were not barred by N.Y. Est. Powers & Trusts Law § 5-4.3 (McKinney 1981). See generally McFadden v. Sanchez, 710 F.2d 907, slip op. at 4514-16 (2d Cir. 1983). Therefore, the Court rejects defendants' argument that plaintiffs' fee request must be reduced because the jury found seven of nine defendants not liable. Five of the seven defendants -- Fawcett, Pastena, Larkin, Bryce and Judge -- all came into contact with Larry Lyons on the day he died. Thus, the Court finds that there was a good faith basis for plaintiffs' claims against these defendants and that the jury's decision concerning them "is not a sufficient reason for reducing [plaintiffs"] fee." Hensley, supra, 51 U.S.L.W. at 4555. The fact that plaintiffs deposed Pastena before joining him as a defendant does not alter the Court's conclusion. Furthermore, merely because plaintiffs received less than anticipated does not, in and of itself, require a reduction. See McCann v. Coughlin, supra, 698 F.2d at 128. Had plaintiffs asserted unsuccessful claims against Mid-Hudson Psychiatric Center, the ...


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