this main issue. The Court finds that plaintiffs are entitled to reasonable attorney's fees for the time spent in establishing their rights as prevailing parties pursuant to § 1988.
The Court also finds that certain hourly charges set forth in MacNaughton's records reflect time actually spent on the "in perpetuity" issue. (Pls. aff. at 3,4). Accordingly, the Court finds that the total number of hours spent on the successful claims in this case must be reduced from 41 to 37.5.
Plaintiffs' attorney seeks a 15% contingent fee risk multiplier because all legal fees in this case above the $ 2,000 retainer are on a contingency fee basis. Until recently, courts in the Second Circuit have held that when there was a substantial risk of not prevailing in a § 1983 action, and therefore not recovering any attorney's fees, a district court could allow an upward adjustment to the award. See, e.g., Williamsburg Fair Hous. Comm. v. Ross-Rodney Hous. Corp., 599 F. Supp. 509, 519 (S.D.N.Y. 1984). However, in Burlington v. Dague, 120 L. Ed. 2d 449, 112 S. Ct. 2638 (1992), the Supreme Court recently held that a federal fee-shifting statute does not permit an attorney's fee to be enhanced on account of risk or difficulty in contingency cases. In any event, plaintiffs' attorney would not have been entitled to a risk multiplier in this case because, given the nature of the claim and MacNaughton's involvement in similar cases, plaintiffs were almost guaranteed success. See Kessler v. Town of Niskayuna, No. 91-4641, 1991 WL 278788 (N.D.N.Y. Dec. 26, 1991); Cawley v. Port Jervis, 753 F. Supp. 128 (S.D.N.Y. 1990); Van Meter v. Maplewood, 696 F. Supp. 1024 (D.N.J. 1988). Accordingly, plaintiffs' "lodestar" fee amount is found by multiplying $ 175 (attorney's reasonable hourly rate) x 37.5 (hours working on plaintiffs' successsful claims) to be $ 6,562.50.
Plaintiffs also seek payment for $ 658.81 in "out-of- pocket" expenses disbursed throughout this action for items ranging from messenger service to computer research. Defendant responds that only the expenses specifically authorized under 28 U.S.C. § 1920 are compensable. This argument, however, was specifically rejected in Swift v. Blum, 502 F. Supp. 1140, 1148 (S.D.N.Y. 1980), wherein that court awarded costs similar to those sought in the present action. See also Bradford v. Blum, 507 F. Supp. 526, 536 n.22 (S.D.N.Y. 1981) (awarding costs for photocopying, telephone, postage, messenger service and carfare). This Court finds plaintiffs' $ 658.81 "out-of-pocket" expenses to be reasonable for a case of this nature. Accordingly, the Court holds that the County must reimburse plaintiffs for these expenses.
For all the aforementioned reasons, plaintiffs' award of attorney's fees and expenses shall be in the amount of $ 6,562.50 which is calculated by multiplying the attorney's hourly rate by the reduced number of hours spent on the successful claims. Recoverable "out-of-pocket" expenses are in the amount of $ 658.81 for a total award of $ 7221.31. Upon receipt of that amount, MacNaughton shall reimburse the Ermlers for the $ 2,391.67 that they have advanced to him to date.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
August 5, 1992
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