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PASTRE v. WEBER

August 20, 1991

SCOTT PASTRE, PLAINTIFF,
v.
THOMAS F. WEBER, INDIVIDUALLY AND AS A NEW YORK STATE POLICE OFFICER, DOVER PLAINS, NEW YORK AND ROBERT E. PINEAU, INDIVIDUALLY AND AS A NEW YORK STATE POLICE OFFICER, DOVER PLAINS, NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Whitman Knapp, Senior District Judge.

This action was commenced in 1983 against two New York State troopers, defendants Weber and Pineau, under 42 U.S.C. § 1983 and under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. The adjudication of the merits of the case has a lengthy procedural history, which culminated on May 3, 1990 with the Second Circuit's affirmance without opinion of our findings of fact and conclusions of law as set forth in our decision dated July 28, 1989, familiarity with which is assumed. See Pastre v. Weber (S.D.N.Y. 1989) 717 F. Supp. 992, aff'd, (2d Cir. 1990) 907 F.2d 144. We there found in favor of plaintiff on his claims against defendant Weber: (1) under § 1983 for violation of plaintiff's Fourth Amendment rights, and (2) for assault and battery. We awarded compensatory damages of $5000.00, as well as $233.50 in medical expenses. We dismissed all claims against defendant Pineau.

At least from the time plaintiff's present attorneys assumed responsibility for this action*fn1 to the Second Circuit's affirmance, the matter was vigorously litigated by both sides.*fn2 As a review of the docket sheet reveals, since the appearance of plaintiff's present counsel, the litigation required several depositions and other discovery, numerous pre-trial conferences, a motion by plaintiff to compel certain discovery, defendants' motion for summary judgment, briefing both before and after a two-day bench trial, and, of course, briefing and argument before the Second Circuit.

The matter is now before us on plaintiff's application pursuant to 42 U.S.C. § 1988 for attorney's fees. While defendant concedes plaintiff is entitled to fees as the prevailing party in the litigation, he contests the amount requested. In addition to disbursements of $7,433.77, the application seeks attorneys' fees totalling $103,611.25.*fn3 The latter figure represents the total time charges of attorneys Daniel H. Weiner, and Sean Francis Reilly, two associates at the law firm of Hughes Hubbard & Reed, and of Hughes Hubbard paralegal J.S. Hollenberg.

Hughes Hubbard commenced its pro bono representation of plaintiff in December of 1985, more than two years after the complaint had been filed. Since that time, Weiner, then a second year associate, has — with the supervision of a Hughes Hubbard partner — acted as lead counsel.*fn4 Weiner was assisted throughout by Reilly, an associate one year his junior. Paralegal Hollenberg participated only in the preparation of the instant application.

Although fees sought for services rendered in a multi-year litigation may be awarded at current rates in order to compensate for the delay in payment, see Missouri v. Jenkins (1989) 491 U.S. 274, 283-84, 109 S.Ct. 2463, 2469-70, 105 L.Ed.2d 229, the instant application seeks reimbursement for the services of attorneys Weiner and Reilly at historical rather than current rates. The following schedule sets forth these rates, indicating the increases, if any, that occurred during the years at issue:

Weiner  Reilly
      1985     $100              — 1986 100; 125 $85; 105
      1987      125                105 1988 150; 155; 135; 140;
                180                160
      1989      180;  215          160;  205
      1990      215;  240          205
      1991      240              —

In his supporting affidavit, Weiner attests that the hourly rates at which compensation is sought are the historical rates charged by Hughes Hubbard to its paying clients for these particular attorneys' services. In further support of the reasonableness of these rates, plaintiff — in addition to relying upon fee awards in other cases — has submitted copies of a statistical law firm survey conducted by a major accounting firm.*fn5 The survey covers the years 1987 to 1989, and indicates that the hourly rates here asserted fall at or below the median range. As for paralegal Hollenberg, compensation is sought at the rate of $85 per hour, at which rate, it is claimed, Hollenberg's time is billed by Hughes Hubbard in the ordinary course of business. Weiner Affid. ¶ 14

Plaintiff asserts that over the course of the last five years more than 650 hours of work have been expended in litigating this case (including prosecuting the instant application), and has submitted time records documenting how each hour was spent. The time records — which take the form of computer print-outs, see Exhs. C to G, Weiner Affid. — include the date, the name of the person recording the time, a description of the task performed and an estimate — in fifteen minute increments — of the amount of time expended. In total plaintiff seeks to recover for:

            283 hours by Weiner
            388 " "   Reilly
             10 " "   Hollenberg

In Weiner's affidavit, he informs us that in preparing the application the following were excluded: the time of the partner who provided general guidance to the associates or of any other member of the firm's legal staff who spent less than 10 hours on the case; and time that was billed either without a sufficient work description or that is arguably duplicative. Weiner Affid. ¶¶ 10, 16

In support of the claim for compensation of disbursements, plaintiff submits computer print-outs which document for each disbursement the nature of the expense, its cost, and the date on which it was incurred. Weiner has attested to the fact that all costs sought to be recovered are of the type normally charged to paying clients. In this regard, plaintiff seeks to recover $7,433.77 for: photocopies, transcripts, computer database legal research, messenger services, contract printing, binding, postage, travel, meals, and certain telephone calls.

Defendant raises several objections to the fee application. He contends: (1) that the application should be denied in toto, claiming that it fails to meet the contemporaneous time records requirement of New York State Ass'n for Retarded Children v. Carey (2d Cir. 1983) 711 F.2d 1136, 1147-48; (2) that the hourly rates at which compensation is sought are excessive; (3) that an excessive number of hours was spent on certain aspects of the litigation and, further, that the recovery should be limited to the time spent on claims against Weber, the defendant against whom plaintiff prevailed; and (4) that the recovery sought for certain costs and disbursements is either unreasonable or altogether unwarranted.

DISCUSSION

Before addressing the objections raised by defendant, we briefly review the general principles that guide our consideration of the application. As the Supreme Court articulated in Missouri v. Jenkins (1989) 491 U.S. 274, 286, 109 S.Ct. 2463, 2470, 105 L.Ed.2d 229 (citations omitted):

  A reasonable attorney's fee under ยง 1988 is one
  calculated on the basis of rates and practices
  prevailing in the relevant market, i.e., "in line
  with those [rates] prevailing in the community for
  similar services by lawyers of reasonably
  comparable skill, experience, and reputation," and
  one that grants the successful civil rights
  plaintiff a "fully compensatory ...

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