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BERRY v. NEW YORK STATE DEP'T OF CORRECTIONAL SERV

December 6, 1996

BESSIE M. BERRY, Plaintiff,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, et al, Defendants.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 Plaintiff, Bessie M. Berry, commenced this action on June 9, 1992, alleging employment discrimination, pursuant to Title VII, 42 U.S.C. § 2000(e)-(2) et seq., violations of her civil rights, pursuant to 42 U.S.C. §§ 1981, 1983, and 1985, violations of the civil RICO act, pursuant to 18 U.S.C. § 1961 et seq., and several pendant state common law claims.

 In May 1995, the parties entered into a stipulation, which subsequently was ordered by this Court, settling and dismissing all claims in the case, except plaintiff's request for reasonable attorney's fees and costs. The parties were unable to reach an agreement on this issue, and plaintiff now moves for an award of attorney's fees and costs, pursuant to 42 U.S.C. § 1988.

 BACKGROUND

 Plaintiff requests a total award of $ 166,867.00 in attorney's fees and costs. The fee request is allocated between four attorneys and a paralegal: Matthew Clayton, Esq. [approximately equal to] 535.9 hours at $ 250 per hour for a total of $ 133,976.30); Valerie Braithwaite, Esq. (7 hours at $ 200 per hour for a total of $ 1,400); Margaret Anderson, Esq. (28.2 hours at $ 185 per hour for a total of $ 5,217); Julia Taylor, Esq. (163.59 hours at $ 120 per hour for a total of $ 19,630.80); and Iris Cobb, paralegal (64 hours at $ 50 per hour for a total of $ 3,200). The cost request of $ 3,442.90 is for travel, lodging, postage, photocopies, facsimile transmissions, long-distance telephone calls, and Westlaw research.

 Defendants do not dispute that plaintiff is the prevailing party in this action and, therefore, entitled to an award of attorney's fees and costs. Defendants, however, strongly contest the amounts requested and claim that they are both excessive and unreasonable. Defendants challenge the total number of hours submitted by plaintiff's counsel, as well as the hourly rates charged.

 DISCUSSION

 Under 42 U.S.C. § 1988, the Court, in its discretion, may allow a prevailing party to recover reasonable attorney's fees. The Second Circuit has adopted the "lodestar" method for determining the proper amount of such an award. See Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058 (2d Cir. 1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268, 110 S. Ct. 2587 (1990). Under this method, the Court multiplies the number of hours reasonably expended by a reasonable hourly rate. Id. at 1058. The burden is on the plaintiff to establish the reasonableness of both the number of hours worked and the rate charged. See Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Cefali v. Buffalo Brass Co., 748 F. Supp. 1011, 1018 (W.D.N.Y. 1990).

 The initial fee calculation should exclude hours that were not "reasonably expended," i.e., "hours that are excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. Further, a reasonable rate is generally one that is "in line 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, 895 n.11, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984).

 After careful review of the parties' submissions, *fn1" this Court concludes that both components of the lodestar require adjustment in this case.

 A. Reasonable Hourly Rates

 In calculating the lodestar, plaintiff asks that the following hourly rates apply: Clayton ($ 250); Braithwaite ($ 200); Anderson ($ 185); Taylor ($ 120); and Cobb ($ 50). Defendants object to these hourly rates on the ground that they are higher than those prevailing in the community.

 I find that the rates requested are somewhat out of line with rates for similarly experienced attorneys within the district for the years in question (1989 through 1996). Further, because this litigation spanned a number of years, I find it appropriate "to calculate and apply an average historic market rate for the period in question." Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 146 (2d Cir. 1993), cert. denied, 510 U.S. 1164, 127 L. Ed. 2d 539, 114 S. Ct. 1189 (1994).

 I began the analysis with the $ 250 per hour rate requested by Clayton, an individual with twenty-six years of specialized experience in the area of complex civil litigation and labor and employment law.

 At the earlier stage of this litigation (1989-1992), I find that the prevailing market rate in this community for an individual with Clayton's experience would have been in the range of $ 150-$ 200 per hour. For example, in 1991, I issued a decision in Holmes v. Sobel, 88-CV-541L (W.D.N.Y. August 21, 1991), awarding an attorney, with more than 15 years' experience, fees at a rate of $ 150 per hour for work performed from 1988-1990. In that case, plaintiff submitted affidavits from two local attorneys, representing that attorneys with 15 years' experience earn from $ 150 to $ 200 per hour for specialized litigation in federal court. Two less experienced attorneys were awarded $ 125 per hour and $ 100 per hour. I found that these rates were "well within the range of rates charged by comparable attorneys for similar lawsuits in this community" and, therefore, were reasonable. Similarly, in United States v. City of Buffalo, 770 F. Supp. 108 (W.D.N.Y. 1991), Judge Curtin awarded a "well qualified and experienced" attorney $ 175 per hour for work performed in the late 1980s and early 1990. Less experienced attorneys were compensated in the range of $ 50 to $ 150 per hour. According to Judge Curtin, these were the appropriate rates "that would be charged in this community for work of similar competence." Id. at 115. Finally, Judge Skretny, in Myree v. Local 41, Int'l Bhd. of Elec. Workers, 847 F. Supp. 1059 (W.D.N.Y. 1994), aff'd, 29 F.3d 620 (1994), awarded two "experienced litigators" $ 150 per hour for work performed in the late 1980s and early 1990s. Associate time during this period was compensated at $ 85 per hour. Judge Skretny found that these rates "reflect those charged by similarly situated attorneys in the Western District of New York." Id. at 1065.

 Toward the later stage of this litigation (1993-1996), I find that the prevailing market rate in this community for an individual with Clayton's experience would have been in the range of $ 200- $ 250 per hour. Plaintiff has submitted the affidavits of two local attorneys, Bryan D. Hetherington and David Rothenberg. Hetherington asserts that based on Clayton's substantial expertise in employment and civil rights law, his billing rate in this District would be between $ 200 and $ 250 per hour. Similarly, Rothenberg states that the prevailing rates in the Western District of New York for attorneys of ...


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