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SOBA v. MCGOEY

March 29, 1991

CARLOS SOBA, PLAINTIFF,
v.
SGT. MCGOEY, DET. MCCOMISKEY, POLICE OFFICERS O'BRIEN, BLACKWELL, LANGAN, POLICE DEPARTMENT, AND THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

Plaintiff Carlos Soba (Soba) has applied, pursuant to 42 U.S.C. § 1988, for attorneys' fees in the amount of $251,768.40 and disbursements in the amount of $13,063.51 based on his having received a jury award of $60,000 against defendants McComiskey and O'Brien, members of the Police Department of the City of New York, for excessive use of force in effecting his arrest for an armed robbery conducted a few minutes before the arrest.

For the reasons that follow, the motion is granted to the extent of $201,202.00 for attorneys' fees and $11,563.51 in disbursements.

In 1983, Soba, an inmate in custody of the Department of Correctional Services of the State of New York, filed this action, pro se, pursuant to 42 U.S.C. § 1983 against several police officers, the Police Department of the City of New York, and the City of New York, based on six wounds he received at or around the time of his arrest on March 12, 1982 for an armed robbery of a bar and grill in Brooklyn, which had occurred several minutes earlier. Soba was carrying a sawed-off shotgun at the time of arrest with which, defendants maintained, he was threatening the health and safety of the defendants, which Soba denied.

Upon stipulation of the parties, Judge Sprizzo ordered the matter be held in abeyance until Soba's appeal of his conviction was decided by the Appellate Division Second Department. The appeal was denied and on September 23, 1988, Judge Sprizzo ordered the completion of discovery by February 28, 1989.

Plaintiff's counsel then served discovery requests and took the depositions of the individual defendants and defended the deposition of Soba at Great Meadow Correctional Facility in Comstock, New York.

After completion of discovery the defendants demanded on April 11, 1989 that plaintiff discontinue against Blackwell, Langan, the Police Department and the City of New York. This demand was refused by plaintiff's counsel due to plaintiff's lack of consent.

On April 27, 1989, the defendants filed a motion for summary judgment. Pursuant to stipulations filed by the parties, the plaintiff's time to respond was adjourned to June 13, 1989, August 3, 1989, October 18, 1989, December 15, 1989, and February 15, 1990.*fn1 Plaintiff's opposing papers were filed on February 15, 1990; defendants' reply papers were filed April 11, 1990. On or about May 8, 1990 the Court granted the motion for summary judgment as to defendants Blackwell, Langan, Police Department and City of New York with consent of plaintiff, but denied the motion for summary judgment as to defendants McGoey, McComiskey and O'Brien, on the grounds that issues of fact remained to be decided by a jury with respect to the reasonable use of force under the circumstances claimed by plaintiff, and set the matter down for an early trial. The Court directed that each side bear its own costs. Defendants then moved for a stay of trial pending appeal of the Court's denial of the motion for summary judgment. The Court rejected this motion by order dated June 18, 1990 and set the matter down for trial in August 1990. On June 29, 1990, the defendants filed a notice of appeal to the Second Circuit of Appeals and applied to this Court for a stay of trial pending appeal, which request was denied on July 17, 1990.

Thereafter, plaintiff's counsel attempted to settle the case with counsel for the defense but those overtures were rebuffed by defendants who refused to make any offer of settlement.

Subsequent to the trial and verdict on August 1-3, 1990, the defendants renewed their motions for a directed verdict and moved for judgment notwithstanding verdict, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure and for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. The plaintiff's counsel opposed these motions and on October 17, 1990, the Court denied the motions. See Soba v. McGoey, 748 F. Supp. 227 (S.D.N.Y. 1990). This application for attorneys' fees followed on November 16, 1990.

For the aforementioned representation plaintiff's counsel sought an attorneys' fee of $251,168.40, representing $224,327.00 of time charges of attorneys and paralegals at regular time charges, less a reduction of $15,000 for duplication of effort, plus a twenty percent enhancement of $41,841.40 to the thus reduced charges for the "`outstanding representation' provided to an `unpopular plaintiff' over a six-year period." In addition, plaintiff's counsel asked for disbursements of $11,563.51, plus $1,500 for an "expert" witness fee,*fn2 for a total claim of $264,231.91.

Defendants have filed opposition to the plaintiff's application on the grounds (1) it is grossly excessive and duplicative, Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (unreasonably expended hours are not compensable), (2) it fails to reflect the limited success achieved by the litigation, (3) the rates requested are not shown to be prevailing ...


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