results that plaintiff has achieved, discussed infra 1995 U.S. Dist. LEXIS 10428, *7-16 and absent any evidence that plaintiff's unsuccessful claims were brought frivolously, this Court is not "required" to reduce the fee award "to reflect [plaintiff's] failure to succeed across the board." Lunday, 42 F.3d at 135.
"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. In the Second Circuit, the use of this "lodestar" approach in calculating a "reasonable" attorney's fee award predates the passage of § 1988 itself. City of Detroit v. Grinnell Corp., 495 F.2d 448, 470-1 (2d Cir. 1974). If an attorney has failed to exercise billing judgment, that failure will logically be apparent from either the hourly rate demanded or the number of hours of service that counsel claims to have performed, and the Court may adjust the lodestar accordingly.
Reasonable Hourly Rate
The hourly rates assigned for attorneys' services must be consistent "with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 n.11, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). The "community" or marketplace in this instance is the Southern District of New York, including Manhattan, where this Court is located and where this litigation has been conducted. See In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987).
Plaintiff's counsel has requested rates of $ 200 an hour for services rendered before January 1, 1992, and $ 250 an hour for services after that date. The two attorneys who have represented plaintiff throughout this matter have documented over twenty years of experience in the practice of public interest law. Over that time, each attorney has worked extensively in civil rights and family law, and their firm, which was founded in 1991, specializes in those areas. Apart from their considerable litigation experience, the two have also published and lectured on civil rights and family law matters. Given the vast experience and expertise of plaintiff's counsel, which defendants have not challenged, this Court is persuaded that $ 200 and $ 250 per hour for the specified time periods are reasonable rates. These rates are also deemed consistent with the relevant prevailing market rates in this district. See, e.g., Loper v. New York City Police Dept., 853 F. Supp. 716, 720 (S.D.N.Y. 1994) (awarding $ 250 an hour, which was "commensurate with fee awards at the partner level in this District," to an attorney with "intermediate experience"). See also Monaghan v. SZS 33 Assocs., L.P., 154 F.R.D. 78, 85 (S.D.N.Y. 1994) (rates of $ 250 to $ 300 an hour were appropriate for experienced partners).
Plaintiff's counsel have also requested compensation for their support staff at rates of $ 75 an hour for law students, $ 60 an hour for paralegals prior to January 1, 1992, and $ 70 an hour thereafter, and $ 20 an hour for clerks. Where the prevailing custom is to bill for paralegal and clerical services separately from services rendered by attorneys themselves, we are authorized to compensate those support services in accordance with market rates in calculating the lodestar. See Missouri v. Jenkins, 491 U.S. 274, 286-89, 109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989) (holding that services rendered by clerks and paralegals may be billed separately if that is the usual practice in the local community). Given that separate billing is indeed the practice in this District, and because the rates requested are comparable to those charged for paralegal and clerical services in this community, we find plaintiff's counsel's request for compensation for the work of their support staff to be reasonable. See Loper v. New York City Police Dept., 853 F. Supp. 716, 720 (S.D.N.Y. 1994) (awarding $ 70 to $ 85 an hour, "a reasonable paralegal billing rate," for clerical work).
Hours Reasonably Expended
When a prevailing party makes a fee application, the "burden is on counsel to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required; where adequate contemporaneous records have not been kept, the court should not award the full amount requested." F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987) (disallowing award where records included only one word descriptions). In this instance, plaintiff's attorneys have submitted contemporaneous records, which defendant Bane has challenged for lack of specificity. At even a cursory glance, defendant Bane's observation is -- on one level -- correct; the time records submitted by counsel are replete with one word functional descriptions such as "Research" and "Telephone Call." Such entries do not meet the standards of this Circuit for fee awards, since they do not aid the Court in understanding what services were provided and whether those services were reasonable.
Noting that the district court is authorized to make an across-the-board percentage reduction in the lodestar rather than engage in a line-item analysis of the fee request, defendant Bane urges this Court to reduce the lodestar by 50%. See New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983) ("it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application"); Lunday, 42 F.3d at 134 ("We do not require that the court set forth item-by-item findings concerning what may be countless objections to individual billing items.") Even so, it is necessary that this Court be explicit about the reasoning underlying any reduction to avoid the perception that the percentage selected is an arbitrary and unfair one. Hensley, 461 U.S. at 437 ("It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award.")
This Court has carefully reviewed the records submitted by plaintiff. Plaintiff's attorneys have requested $ 88,941.50 in fees and $ 4,620.59 in costs for work done through April 30, 1994 in the District Court, and $ 53,704.75 in fees and $ 1,442.26 in costs for work done in the Second Circuit, for a total of $ 148,709.10. Of that amount, $ 2,375.00 has been requested for various services pertaining to the motion for class action certification; since that motion is still pending, the Court elects not to make an award for those services at this time.
As to the remainder of the application, the Court finds that approximately 20% of the balance of the entries are incomplete or are marked "Research," "Telephone Call," "Meeting," "Consultation," or "Miscellaneous." Without more information, it is impossible to determine whether the services to which those entries refer were reasonably rendered. Plaintiff's lead counsel has volunteered to provide more information, but to delay the instant motion any further would be to risk turning it into "a second major litigation," which is disfavored. Hensley, 461 U.S. at 437. Given that this fee application is being considered pendente lite, plaintiff's counsel will have an opportunity in the future to resubmit any discounted claims. At this stage, the Court elects to reduce the amount of the fee award by an additional 20% (having already subtracted the services relating to the motion for class certification) which yields a total award of $ 117,067.28. In our view, this award takes adequate account of the results achieved by plaintiff's counsel without rewarding unreasonable or undocumented expenditures of time.
Plaintiff's counsel have requested a multiplier of 25% in consideration of delay of payment. They point out that this litigation, which is still pending, has lasted over four years, that they have received no compensation to date, that they have had to advance payment on behalf of plaintiff, who cannot afford to pay them, and that they have had to forego working on other matters which could have produced income for them during the past four years.
Whereas fee enhancements or multipliers for reasons such as contingency or novelty have fallen out of favor, a delay multiplier remains within our discretion. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 716, 734, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987) ("We do not suggest . . . that adjustments for delay are inconsistent with the typical fee-shifting statute;" disallowing enhancement based on risk); Missouri v. Jenkins, 491 U.S. at 284 ("An adjustment for delay is, we hold, an appropriate factor in the determination of what constitutes a reasonable attorney's fee under § 1988."). We decline, however, to exercise this discretion on the instant motion. This motion is being adjudicated pendente lite, and the interim award embodied in this Opinion and Order simultaneously acknowledges the services which have already been rendered by plaintiffs' counsel and precludes the further delay that would occur if plaintiffs' counsel were required to wait until the ultimate conclusion of this litigation to make a fee application. "In economic terms, such an interim award does not differ from an enhancement for delay in payment." Missouri v. Jenkins, 491 U.S. at 284 n. 6. Accordingly, a further enhancement for delay is not warranted.
Apportionment of the Fee Award
Defendant Bloomer argues that because the question remanded to this Court by the Second Circuit is based upon the discrete acts of the State in promulgating a statewide policy and maintaining a single Central Register, the litigation no longer implicates any acts on the part of Orange County. In support of this argument, defendant Bloomer notes that plaintiff's pendent state law claims against Orange County were dismissed by this Court in its March 31, 1992 Order. He, therefore, asks that the Court reject that portion of the motion for attorney's fees which may be directed against the Orange County Commissioner of Social Services.
It is true that plaintiff's state law claims, which implicated acts on the part of Orange County, were dismissed by the March 31, Order. Given that the Second Circuit reviewed only those claims which were dismissed in the February 5, 1993 Order, plaintiff cannot argue that her state law claims were revived as a result of the Circuit Court's ruling. See Valmonte v. Bane, 18 F.3d 992. Nonetheless, it is also true that those of plaintiff's federal constitutional claims which were revived by the Second Circuit's ruling implicate acts of Orange County as well as those of New York State, that Orange County has actively participated in the litigation of those claims, and that Orange County has continued to be a party to the instant litigation.
Moreover, the record shows that when plaintiff appealed the February 5, 1993 Order, defendant Bloomer requested and received permission to submit a reply brief which was filed some time after defendant Bane's brief. Defendant Bloomer's reply brief included substantial argument with respect to plaintiff's federal claims. As a result, plaintiff was required to expend time specifically responding to issues raised in defendant Bloomer's brief. That time expenditure has been documented in plaintiff's fee application; those entries which pertain to services rendered by plaintiff's counsel in responding to defendant Bloomer's brief total $ 8650.30.
In light of plaintiff's status as a prevailing party" with respect to her federal claims, discussed infra 1995 U.S. Dist. LEXIS 10428, *7-16, we are not persuaded that plaintiff should be denied compensation for the hours devoted by plaintiff's counsel to responding to defendant Bloomer's brief. However, this Court cannot overlook the fact that the documentation of those hours suffers from the same lack of specificity that appears throughout plaintiff's fee application. A significant number of entries bear vague or repetitive labels; others can be identified as pertaining to defendant Bloomer's brief only by their date.
Accordingly, this Court elects to reduce the award for these claims by 20% to reflect the lack of specificity in documentation, resulting in an award of $ 6,920.24 as against defendant Bloomer in his capacity as Commissioner of the Orange County Department of Social Services. The remaining $ 110,147.04 of the fee award is to be borne by defendant Bane in her capacity as Commissioner of the New York State Department of Social Services.
Plaintiff's motion for attorney's fees is hereby granted in the amount of $ 117,067.28, in accordance with the findings set forth above.
Dated: New York, New York
July 31, 1995
ALLEN G. SCHWARTZ, U.S.D.J.