the attorneys' and expert witness' fees related to the January, 1994 motion by the defendants which was withdrawn. In that motion, the County sought to have ASLF removed as a plaintiff for lack of standing, to have the County declared the sole authority to determine when the models were complete, and to excuse the County from complying with the Consent Judgment. The County also sought injunctive relief and a declaration that ASLF was in contempt of the Consent Judgment. It is clear to the Court that as to a substantial part of the issues raised by the January, 1994 motion the plaintiff, ASLF, ultimately prevailed by reason of this Court's decision in the December, 1994 motion. As to the status of ASLF as a plaintiff, the Court has found ASLF to be a proper plaintiff. As to whom the Court found to be the proper party to determine when the models were complete, the Court held that, pursuant to the Consent Judgment, the State is the proper party to make that determination. As to whether the County is bound by the conditions and deadlines of the Consent Judgment, the Court held that the County clearly was bound, notwithstanding the fact that the Court declined to penalize the County to the full extent authorized in the Consent Judgment.
The Court, however, is faced with a novel question - whether a prevailing party, having received a final determination as to one motion, may recover as a prevailing party for the legal and expert witness fees incurred in opposing a prior motion, which was withdrawn by the movant at the eleventh hour, but nevertheless presented substantially the same issues decided in the subsequent motion. When distilled down, the issue becomes whether ASLF may recover the fees relating to the issues decided in the subsequent motion. Since many of the issues decided in the December, 1994 motion, and as to which ASLF was a prevailing party, were identical to those researched and briefed for the January, 1994 motion, the Court finds that ASLF "has achieved some vindication" of its rights which have received recognition by the court. See, Gingras, 740 F.2d at 212. The Court further finds that ASLF has established that the litigation efforts expended in the withdrawn motion were a "necessary and important factor" in obtaining the subsequent results. See, New York State Ass'n of Career Schools v. State Educe. Dep't, 762 F. Supp. 1124, 1126(S.D.N.Y. 1991) (citing, Correa v. Heckler, 587 F. Supp. 1216, 1221(S.D.N.Y. 1984)).
Thus, ASLF is a prevailing party and entitled to the attorneys' and expert witness' fees incurred in the preparation to oppose the January, 1994 motion.
E. Calculation of Attorneys' And Expert Witness' Fees
"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 434, 103 S. Ct. at 1939. In general, the reasonable rate used in a determination of the amount of attorneys' fees to be awarded "should be calculated according to the prevailing rates in the community 'for similar services by lawyers of reasonably comparable skill, experience and reputation.'" Cefali v. Buffalo Brass Co., 748 F. Supp. 1011, 1018 (W.D.N.Y. 1990) (quoting Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir. 1989)) (emphasis in original). The Second Circuit has articulated that the proper rule is for the district court to "consider the prevailing rates in the district in which the court sits." Polk v. New York State Dep't. of Correctional Servs., 722 F.2d 23, 25 (2d Cir. 1983) (awarding attorneys' fees under Section 1988).
The rationale for this rule lies in its simplicity and neutrality. Donnell, 220 U.S. App. D.C. 405, 682 F.2d 240, 251. It allows the district court to determine "the prevailing market rate within its jurisdiction, an inquiry about which it should develop expertise." Id. Further, such a rule does not work
to any clear advantage for either those seeking attorneys' fees or those paying them. High-priced attorneys coming into a jurisdiction in which market rates are lower will have to accept those lower rates for litigation performed there. Similarly, some attorneys may receive fees based on rates higher than they normally command if those higher rates are the norm for the jurisdiction in which the suit was litigated.
Id. Therefore, the appropriate hourly fee to be applied in calculating an award of attorneys' fees is the prevailing rate in the district in which the suit is litigated, irrespective of the fee usually charged by the attorney.
Certain exceptions to this rule have been articulated. Such exceptions include: (1) the need for "special expertise of counsel from a distant district," Polk, 722 F.2d at 25, (2) "when local counsel are unwilling to handle the case," In Re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1296, 1308 (E.D.N.Y. 1985), aff'd in part and rev'd in part, 818 F.2d 226 (2d Cir. 1987), and (3) "when a lawyer files a suit in his or her home district that is properly maintainable there, and the case is transferred to the forum district . . . ." Id. (quoting Polk, 722 F.2d at 25). However, the District of Columbia Circuit articulated that a case for which much of the work must be performed away from the district court's community does not alone provide a sufficient reason for deviating from the general rule. Donnell, 682 F.2d at 252.
As this case does not fit into any of the articulated exceptions to the locality rule, the court must apply the prevailing market rates found within the Northern District of New York in its calculation of attorneys' fees to be awarded to ASLF. Therefore, the court will award attorneys' fees in the present action based on the following hourly rates:
Attorney Type of Work Hourly Rate
Partner Legal $ 150
Travel $ 75
Associate Legal $ 100
Paralegal Legal $ 50
© 1992-2004 VersusLaw Inc.