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December 9, 1994



The opinion of the court was delivered by: ROBERT W. SWEET


Sweet, D.J.

 The plaintiffs, Luther M. Ragin, Jr., Deborah Fish Ragin, Renaye B. Cuyler, Jerome F. Cuyler (collectively, the "Individual Plaintiffs") and the Open Housing Center, Inc., (the "OHC") (the OHC and the Individual Plaintiffs are referred to collectively as the "Plaintiffs") have moved this Court for an order of attorneys' fees in favor of Plaintiffs pursuant to the opinion and mandate of the Second Circuit on September 29, 1993. See Ragin v. Macklowe, 6 F.3d 898 (2d Cir. 1993).

 Plaintiffs' motion for attorney fees is granted, subject to the limitations set forth below.

 Prior Proceedings

 The facts and prior proceedings in this action are fully set forth in the following cited opinions, familiarity with which is assumed. See Ragin v. Macklowe, 126 F.R.D. 475 (S.D.N.Y. 1989) ("Ragin I"); Ragin v. Macklowe 801 F. Supp. 1213 (S.D.N.Y. 1992) ("Ragin II"); Ragin v. Macklowe, 6 F.3d 898 (2d Cir. 1993) ("Ragin III"). A review of those facts and prior proceedings relevant to this motion is presented below.

 The Plaintiffs commenced this action in federal district court for damages and injunctive relief in August of 1988, alleging that defendants The Harry Macklowe Real Estate Co. ("HMRE"), Harry Macklowe ("Macklowe"), and Elfon Realty Co. ("Elfon") (collectively, the "Defendants") violated section 804(c) of the Fair Housing Act, 42 U.S.C. § 3604(c) (1988) (the "FHA" or the "Act"). The gravamen of the Plaintiffs' complaint was that the Defendants' placement of display advertising for residential apartments in The New York Times violated the Act's prohibition against racial discrimination in residential housing advertising because all of the models portrayed in the advertisement were white.

 Although the complaint in this case was filed on August 12, 1988, the controversy between the parties began in 1986. At the request of Plaintiffs, Kerry A. Scanlon ("Scanlon") (then counsel at NAACP Legal Defense Fund) ("NAACP-LDF") began preliminary investigations and research to remedy advertising deemed to be discriminatory under the Act.

 In 1987, Plaintiffs filed an administrative complaint with the New York Division of Human Rights, alleging that the Harry Macklowe Organization ("HMO") had conducted unlawful discrimination in its advertising campaign. In May of 1988, the Agency found probable cause against HMO and recommended that a public hearing be held. There was no public hearing, and no further action was taken by or before the Division of Human Rights.

 Shortly after the Agency finding, this litigation was commenced finally culminating in a fourteen day trial with an advisory jury (See Ragin II). Judgment was entered in favor of the Plaintiffs on August 25, 1992. The court determined that HMRE and Macklowe had violated the Fair Housing Act. Ragin II, 801 F. Supp. at 1230-32. Damages of $ 2,500 were awarded to each individual plaintiff and $ 20,000 in compensatory damages to OHC. Id. at 1233-34. The Court, following the advisory verdict of the jury, declined to award punitive damages. Id. at 1234-35. In addition to compensatory damages, the Court issued a permanent injunction providing broad relief. The injunction enjoins the defendants, their officers, agents, servants and employees from:


making, printing, publishing, or causing to be made, printed, or published . . . any advertisement [of any type] with respect to the sale or rental of housing or a dwelling which violates § 3604(c) of the Fair Housing Act, 42 U.S.C. § 3604(c), and indicates any preference, limitation or discrimination based upon race or color, or an intention to make such a preference, limitation, or discrimination or that the housing or dwelling being advertised is not open to all without regard to race or color.

 Judgment, October 19, 1992.

 Prior to submission of a formal fee application by Plaintiffs, an order of October 19, 1992 was entered supplementing the findings of fact and conclusions of law, and stating that in view of the "financial ability of the plaintiffs" and "the nature of the action and relief granted," counsel fees were not appropriate to further the purposes of the Fair Housing Act. Order, October 19, 1992.

 The Plaintiffs appealed, among other issues, the denial of attorneys' fees. The Court of Appeals affirmed the findings and conclusions of law with respect to liability, compensatory damages and punitive damages, as well as the scope of injunctive relief. Ragin III, 6 F.3d 898, 911. The Court did not agree, however, with the method used by this Court to deny all attorneys' fees and remanded the attorneys' fees issues for further proceedings stating:


. . . the district court improperly declined to apply the amendment in determining whether plaintiffs were entitled to attorney's fees for legal work performed after the effective date of the amendment . . . [A] remand is required also to determine whether the plaintiffs met the criteria established in the unamended statute for attorney's fees incurred prior to the effective date of the amendment.

 Ragin III at 911.

 After the remand, a November 10, 1993 conference established that Plaintiffs would file a fee application on or before December 22, 1993. Defendants were then to respond by January 26, 1994 and Plaintiffs were to file a reply by February 4, 1994. Oral argument was scheduled for February 9, 1994.

 Plaintiffs filed a fee application of December 22, 1993, but, a week later, Plaintiffs filed an amended application ("Base Application"). In that Base Application, Plaintiffs sought compensation for 2,587.39 hours resulting in a fee of $ 557,530.53, together with disbursements of $ 45,667.13. The Base Application did not contain any contemporaneous time records, nor did it contain receipts in connection with the disbursements sought. The motion claimed to seek reimbursement for only 70 percent of the work done on the appeal and to exclude legal work done on the punitive damages section of the original claim, since Plaintiffs did not prevail on this issue at trial or on appeal.

 Thereafter, on January 12, 1994, Plaintiffs served their First Set of Interrogatories and Request for Production of Documents on Attorneys' Fees. Responses to those Discovery Requests were due on February 11, 1994, two days after oral argument.

 Defendants filed their Opposition Brief on January 26, 1994 arguing that Plaintiffs had not met their burden demonstrating OHC's inability to pay pre-amendment fees and asking for a denial, or the alternative for a substantial reduction in post-amendment fees to account for the minimal success of the action, to eliminate fees affiliated with administrative hearings and reductions for failure of documentation, lack of specificity, duplication and repetition. Plaintiffs filed their reply on February 4, 1994. Plaintiffs agreed to reduce their application by an additional 43.45 hours including time spent on the punitive damage issue and time spent in court on the day a mistrial was declared for failure to withdraw counsel before jury selection began.

 On February 8, 1994 Defendants responded to the new information by letter to the Court. In that letter Defendants cite numerous expenses allocated by Plaintiffs counsel's firm of Lefrak & Holman that did not relate to this case.

 At the hearing on February 9, Plaintiffs were ordered to provide Defendants with their contemporaneous time records, rather than the "recharacterized" versions initially submitted. The hearing was adjourned to allow Defendants to review those records.

 It was soon revealed that Plaintiffs did not have the actual time records to support entries for Scanlon totalling 242 hours for which they sought approximately $ 66,770 in fees. Rather the Base Application contained "summaries" based upon Scanlon's recollection and the time records of others. Defendants made objections to some of these entries in a letter dated February 15.

 Oral argument was heard on February 16, and decision was reserved.

 On March 15, 1994 Plaintiffs sent a letter to the Court stating that the Defendants' response to their Discovery Request was inadequate. Plaintiffs also indicated that they would reduce the number of hours for which compensation was being sought. They reduced their fees by 19.60 hours in response to specific instances of duplication or transcription errors that were pointed out to them and this Court by Defendants. An additional 7.5 hours were deducted for hours attributable to another case. Finally, Plaintiffs reduced by 20% the remaining fees attributable to the trial work done by the lawyers at the firms of Hill Betts & Nash, Summit Solomon & Feldesman, and LeFrak & Holman, P.C. who were associated with Thomas A. Holman ("Holman") one of two principal counsel for the Plaintiffs in this case.

 Defendants responded by letter dated March 25 and on April 13 oral argument was heard on discovery issues related to the fee application. At the hearing, Defendants were ordered to supplement their February 11 response by providing Plaintiffs with the number of hours recorded by Defendants' attorneys in connection with this lawsuit. Plaintiffs were given permission to submit additional information in support of the Base Application.

 Defendants supplemented their discovery response. Plaintiffs filed a Supplemental Submission on June 29. Defendants submitted a reply on July 29. Plaintiffs' response was filed on August 9. The Base Application was restored to the Calendar as of August 24, 1994. The final application was for $ 474,149.68 in fees and $ 47,889.27 in expenses including interest.

 On September 14, 1994 Defendants submitted a brief in lieu of further oral argument in opposition to Plaintiffs' application for attorneys fees. The application for fees was considered fully submitted as of September 28, 1994.


 Two issues are before this Court: first, whether the Plaintiffs are entitled to fees for the legal work done prior to the amendment and second, whether they are entitled to fees for work done after the amendment. Both issues are considered in a belated effort to comply with the Supreme Court's admonishment that "[a] request for attorneys' fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).

 On a fee application, the claimant has the initial burden of documenting and proving its claims. Id. In light of the papers and hearings on Plaintiffs' fee application, their fee application is granted in part as discussed below:

 I. The Mandate Requires Consideration of Both Pre and Post Amendment Fees

 Prior to 1988, a district court could award "reasonable" attorneys' fees to a prevailing plaintiff in an FHA action if the plaintiff was "not financially able to assume said attorney's fees." 42 U.S.C. § 3612 (c) (1982). ("Pre-amended Act") The amendments to the Act, effective March 18, 1989, provide that a district court "in its discretion, may allow the prevailing party . . . a reasonable attorney's fee and costs." 42 U.S.C. § 3613 (c) (2) (1988). ("Amended Act"). There is no mention of ability to pay in the amended statute.

 The Court of Appeals held that this Court "properly applied the unamended statute to legal services performed prior to the effective date of the amendment." Ragin III, 6 F.3d at 911. It went on to say, however, that in the absence of sufficient proceedings on the issue of Plaintiffs' ability to pay, "a remand is required . . . to determine whether the plaintiffs met the criteria established in the unamended statute for attorneys' fees incurred prior to the effective date." Id.

 With regard to legal services provided after the amendment, the Court of Appeals remanded the case to determine "whether plaintiffs were entitled to attorneys' fees for legal work performed after the effective date of the amendment . . ." Id.

  Consistent with the Court of Appeals order, determinations regarding reasonable attorneys' fees prior to and after the effective date of the amended act must be made. Pursuant to the statute, the legal fees incurred before the effective date of the amendment will be paid by the defendants only if the plaintiffs' are unable to pay them. Any attorney's fees deemed appropriate for work performed after the effective date will be paid by defendants without regard to the plaintiffs' ability to pay. Ragin III, 6 F.3d at 910-11. See Cabrera v. Jakabovitz, 24 F.3d 372, 392-93 (2d Cir. 1994) (confirming that the Amendment eliminated the financial need requirement).

 II. Plaintiffs are Able to Pay Pre-Amendment Fees

 Plaintiffs suggest that the amount of attorneys' fees incurred during the pre-amendment period is $ 17,292.00. (Pls.' Amended Br. at 13) and that pre-amendment expenses during this period were at least $ 330.53 (Id.). Plaintiffs suggest that one third of these fees and expenses, or $ 5,764.00 in fees and $ 110.18 are attributable to OHC. The one-third portion, was arrived at by estimates of Plaintiffs' fee counsel regarding the special claims of the institutional plaintiff. (Pls.' Reply at 6 n.3) OHC was one of six original Plaintiffs and one of five Plaintiffs that proceeded to trial. Without further description from counsel segregating the fees attributable to the institutional plaintiff, it is appropriate that one fifth of the fees be paid by OHC.

 At the time of trial the four individual Plaintiffs were: Luther Ragin, a lawyer with degrees in law and public policy from Harvard University, who was the Chief Financial Officer of Earl Graves, Ltd.; Deborah Fish Ragin, an employee of Beth Israel Medical Center, who held a masters and a doctoral degree from Harvard University; Renaye Cuyler, a speech pathologist and a lawyer, with a J.D. from Fordham Law School, who was a practicing attorney at her own law firm specializing in personal injury; and Jerome Cuyler, a physician, with an M.D. from Cornell University Medical College, employed as the Associate Director of Brooklyn Jewish Hospital.

 The Institutional plaintiff was OHC. OHC is a not-for-profit corporation headquartered in New York City. OHC provides a wide range of services with respect to housing in the New York Metropolitan area, which include providing outreach, and investigation with respect to discriminatory practices in housing.

 Pre-Amendment Fees are Subject to the Same Reductions for Inaccurate Record Keeping, Time Spent on Administrative Hearing and Limited Success

 The pre-Amendment statute authorizes the court to award "reasonable attorneys fees . . . , provided, that the plaintiff is not financially able to assume said attorney's fees". 42 U.S.C. § 3612 (c) (1982). The first step, therefore, is to determine what reasonable attorneys' fees would be. The second step will be to determine whether or not the plaintiff can pay those fees.

 Reductions to the total amount of fees requested in the "Base Application" should be made consistent with the discussion that follows in the Post-Amendment fees section. This will include reductions for inaccurate record keeping, elimination of fees related to work done in preparation for the administrative proceedings and a reduction for limited success in the trial portion of this action.

 The result of these reductions is that the Pre-Amendment fees requested by Plaintiffs are reduced to $ 4,177.

 The OHC share of that bill for fees will be $ 835.40. OHC has not demonstrated that it is unable to pay its proportionate share of pre-Amendment fees. in fact, Ms. Spiro's affidavit states that OHC's income exceeded its expenses by $ 8,582 in 1988 and by $ 14,596 in 1989. Spiro Second Aff. PP 2,3. This is more than enough money to pay this fee or the $ 5,706.36 that Plaintiffs originally determined to be OHC's share.

 In their original motion, Plaintiffs did not ask for $ 11,585.64 (67%) that they evidently attributed to the individual Plaintiffs and which these Plaintiffs were willing to pay. After making reductions in line with this opinion, the total fees allocated to the individual Plaintiffs are only $ 3,342. Since they conceded their ability to pay the $ 11,585.64 fees, this lower fee is also affordable.

 For the reasons described above, all of the pre-Amendment fees will be paid by Plaintiffs.

 $ 191,184 of Post Amendment Fees will be Paid by Defendants

 Lodestar Calculation

 Generally, in awarding attorneys' fees under federal civil rights fee-shifting statutes, courts are directed to use the lodestar method. Blanchard v. Bergeron, 489 U.S. 87, 103 L. Ed. 2d 67, 109 S. Ct. 939 (1989). The law of this Circuit further specifies that "the starting point of every fee award . . . must be a calculation of the attorney's services in terms of the time he [or she] has expended on the case." City of Detroit v. Grinnell Corp., 495 F.2d 448, 470 (2d Cir. 1974) ("Grinnell"). In Grinnell, the Court of Appeals established what is known as the lodestar approach whereby a court multiplies the number of hours reasonably expended by a reasonable hourly rate to arrive at a reasonable attorneys' fee award. Grinnell, 495 F.2d at 470-71.

 After at least five rounds of briefs and lengthy letters, Plaintiffs requested $ 474,149.68 in attorney fees. This represented a $ 115,566.67 reduction from the original request. The reductions included $ 7,739.75 to account for duplicative billings and items reduced as the result of the 2/16/94 hearing and $ 66,588.35 of across the board reductions offered by Plaintiffs in response criticism of duplicative and error-filled billing records.

 At the end of the day, and now evening, there must be further reductions to account for some excess in billing rates, inadequate documentation of fees and limited success at trial and on appeal. Plaintiffs' Base Application, modified over the course of the proceedings, requested the following fees: n1 Name Grad. Year Rate Hours Hill Betts & Nash Pre-Amendment time Thomas A. Holman 1972 $ 275 14.6 Post Amendment time Thomas A. Holman 1972 $ 275 28.96 Summit Solomon and Feldesman (all Post Amendment time) Thomas A. Holman 1972 $ 275 14.52 Katherine J. Fritz 1985 $ 195 39.44 Byron O. Brissett Law Clerk $ 75 3.8 Lefrak & Holman (all Post-Amendment time) Trial: Thomas A. Holman 1972 $ 275 434.04 Alla Roytberg 1991 $ 125 463.84 Marsha Beil 1972 $ 275 66.48 Louis Wollin 1981 $ 175 3.20 Christina Williamson Paralegal $ 75 64.00 Appeal: n2 Thomas A. Holman 1972 $ 275 65.91 Alla Roytberg 1991 $ 125 46.13 Marsha Beil 1972 $ 275 16.10 NAACP Legal Defense Fund Pre-Amendment time Kerry Scanlon 1977 $ 275 19.15 (Macklowe time) n3 Kerry Scanlon (10% of general time) n4 1977 $ 275 26.09 Post-Amendment time Trial: Kerry Scanlon 1977 $ 275 464.1 (Macklowe time) Kerry Scanlon (10% of general time) 1977 $ 275 3.19 Collette Matzzie law student $ 75 112.00 Appeal: Kerry Scanlon 1977 $ 275 105.49 Eric Schnapper 1968 $ 325 108.8 Cornelia Pillard 1987 $ 200 129.5 Marianne Merritt law student $ 75 23.03


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