of like skill in the area[.]" Id. (internal quotations and citations omitted).
The difficulty arises, however, when, as here, "'lawyers come from out of town to litigate a suit.'" Segarra v. Messina, 158 F.R.D. 230, 234 (N.D.N.Y. 1994) (quoting Donnell v. United States, 220 U.S. App. D.C. 405, 682 F.2d 240, 251 (D.C.Cir. 1982)). In that situation, "the 'lodestar' figure should be 'in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'" Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997) (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S. Ct. 1541, 1547 n. 11, 79 L. Ed. 2d 891 (1984)). The Second Circuit has instructed "that the 'prevailing community' the district court should consider to determine the 'lodestar' figure is 'the district in which the court sits.'" Id. (quoting Polk v. New York State Dep't of Correctional Servs., 722 F.2d 23, 25 (2d Cir. 1983)). As the foregoing makes clear, the appropriate hourly rate to be applied in calculating the fee awards in the present action is the prevailing rate in the Northern District of New York where this action was litigated, "irrespective of the fee usually charged by the attorney."
See Segarra, 158 F.R.D. at 234.
It is against this backdrop that the court will consider (1) the reasonableness of the hourly rates plaintiffs' attorneys are seeking; and (2) the reasonableness of the hours expended by plaintiffs' attorneys. In addressing those issues, the court is mindful of its obligation to make sufficient findings of fact to substantiate any fees awarded under section 1988. See Orchano, 107 F.3d at 97 and 99 (vacating and remanding case where district court failed to make adequate factual findings in calculating a fee award in a civil rights action). The court is also mindful of the Second Circuit's "warning that attorney's fees are to be awarded 'with an 'eye to moderation,' seeking to avoid either the reality or the appearance of awarding 'wind falls."" Evans v. State of Connecticut, 1997 U.S. Dist. LEXIS 6813 at *54, 1997 WL 264894, at *17 (D.Conn. May 12, 1997) (quoting Beazer v. New York City Transit Authority, 558 F.2d 97, 101 (2d Cir. 1977)) (other citations omitted).
1. Reasonable Hourly Rate
Defendants strongly urge the court to find "a reasonable fee based upon the prevailing rate in the Northern District of New York, which is $ 150 per hour." Def. Memo. at 5. As noted at the outset, attorney Burns is seeking only $ 135.00 per hour
and attorney Smith is seeking $ 150.00 per hour. Because those rates easily fall within the prevailing rates for the Northern District of New York,
and because defendants do not object to the same, in calculating the fees due attorneys Burns and Smith, with the exception of travel time and non-legal tasks, which the court will separately address, the court will use the hourly rates which they are requesting. In accepting these requested hourly rates, the court has taken into account the legal experience and background of attorneys Burns and Smith, as more fully described in their respective supporting affidavits, as well as the complexity and nature of this case. Burns Aff., at PP 1-2; and Smith Aff., at PP 1 and 3.
The real controversy here centers on the $ 250.00 hourly rate which attorney Cohen, who, it appears, regularly practices in New York City, is seeking. In keeping with the prevailing rates in this District, and bearing in mind attorney Cohen's skill, experience and reputation as detailed in his supporting affidavit,
vis-a-vis other similarly situated attorneys in this community, the court finds that under the locality rule, he too will be compensated at the rate of $ 150.00 per hour,
except, as will be discussed, for travel time. The court is fully aware that this is a significant reduction from the hourly rate which attorney Cohen is seeking. However, under the locality rule," high-priced attorneys coming into a jurisdiction in which market rates are lower will have to accept those lower rates for litigation performed there." Segarra, supra, 158 F.R.D. at 234 (quoting Donnell, supra, 682 F.2d at 251). And that is precisely the situation in which attorney Cohen finds himself.
2. Hours Reasonably Expended
As Hensley makes clear, in calculating the lodestar figure, the court must next consider whether the hours expended by attorneys Burns, Cohen and Smith were reasonable. Except for the fees sought for preparation of the section 1292(b) motion seeking leave to file an interlocutory appeal, earlier discussed, the defendants do not challenge the reasonableness of the number of hours expended by plaintiffs' attorneys. Nevertheless, as the Second Circuit requires, the court has undertaken an independent examination of the contemporaneous time records
submitted by attorneys Burns, Cohen and Smith, to insure that "'a certain number of hours were usefully and reasonably expended.'" Haley, supra, 106 F.3d at 484 (quoting Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) (per curiam)).
a. Attorney Burns
In reviewing attorney Burns' time records, the court finds that, in general, the hours expended by him were reasonable. The court is somewhat bothered though by the ten separate entries to "review file," when those reviews do not appear to be related to any specific task.
Furthermore, there appear to be duplicative entries for review of the district court file.
Obviously some review of the file is necessary, particularly when an attorney first acquires a case. But, in the court's opinion, the time expended reviewing the file was excessive and thus attorney Burns is entitled to be compensated for only half of the time he billed for reviewing the file (8.45 hours, rather than 16.90 hours), particularly where the entries for such review are vague and do not provide the court with sufficient information to determine whether the hours expended on that particular task were reasonable. See Jackson, supra, 959 F. Supp. 168 (and cases cited therein).
There is one other area to which the court finds attorney Burns devoted an excessive number of hours, and that is for trial preparation. His time records contain eight separate entries for trial preparation (excluding entries for trial preparation done in conjunction with other tasks), totaling 35.3 hours.
Standing alone, that figure might not seem unreasonable. When viewed in the broader context of this litigation as a whole, however, the court finds that time somewhat excessive, especially considering the fact that ultimately attorney Burns did not represent plaintiff during the trial.
Accordingly, the court will reduce by one-third the hours (from 35.3 hours to 23.5 hours) for which attorney Burns will be compensated for trial preparation.
Furthermore, there are two tasks performed by attorney Burns for which the court declines to compensate him, and that is the work he did on plaintiff's clemency application,
and time spent reviewing the Western District of New York's manual for section 1983 prisoner cases.
It is not readily apparent that either of those tasks are relevant to this action. Therefore, because the court does not believe that that time was reasonably expended in connection with this action, attorney Burns will not be allowed to recover a fee for that 1.3 hours.
The remaining hours billed by attorney Burns were, in the court's opinion, reasonably expended. The court disagrees, though, that he should be compensated at the rate of $ 135.00 per hour for all of that time. Attorney Burns is not entitled to be compensated at the rate of $ 135.00 per hour for the .50 hours he expended to "request . . . clients [sic] file at District Court[,]"
nor for the .70 hours he expended "obtaining copies of pleadings at District Court[,]"
because those are administrative tasks which just as easily could have been done by a non-lawyer. Thus, as to those tasks which the court deems non-legal, attorney Burns will be compensated at the rate of $ 50.00 per hour. See Cooley, supra, 1996 WL 494983, at *4 (and cases cited therein) ("The case law is clear that an attorney is not entitled to be compensated at the same hourly rate for the performance of legal and non-legal services.").
Likewise, attorney Burns also is not entitled to be compensated at the rate of $ 135.00 per hour for his travel time. Mr. Burns did not always distinguish between time spent performing legal work and his travel time in relation thereto. For example, on April 10, 1992, he billed a total of 7.40 hours for the following: "Review file; research; attend conference with client at Fishkill Correctional Facility[.]" Burns Aff., exh. A thereto at 1. Therefore, the court has undertaken that task. Based upon an estimated travel time of two hours between Albany and Fishkill Correctional Facility (where the plaintiff was incarcerated at the time), and the same estimated travel time between Albany and Syracuse, attorney Burns expended twenty-four hours in travel time.
In accordance with the practice in this District, attorney Burns will not be compensated for his travel time at his full hourly rate for the performance of legal services, particularly where there has been no showing that he was able to render legal services en route. See id. at *4 (and cases discussed therein). Although this court has previously awarded $ 50.00 per hour for travel time,
as Magistrate Judge Hurd recently did, the court will allow $ 65.00 per hour for that time. DeCarlo, supra, 963 F. Supp. 175, 1997 WL 241080, at *3.
To summarize, after taking into account the foregoing reductions and deductions, the court finds that attorney James Burns is entitled to a total of $ 40,749.75 in fees, which includes time expended on this fee motion. See id. (and cases cited therein). That figure represents 289.85 hours for legal work, at the rate of $ 135.00 per hour, or $ 39,129.75; plus 1.20 hours for non-legal work, at the rate of $ 50.00 per hour, or $ 60.00; and twenty-four hours of travel time at the rate of $ 65.00 per hour, or $ 1,560.00.
b. Attorney Cohen
As previously discussed, attorney Cohen will be paid at the hourly rate of $ 150.00, rather than the requested hourly rate of $ 50.00, except for travel time, for which he will be compensated at the rate of $ 65.00 per hour. In assessing whether he expended a reasonable number of hours on this litigation, the court finds that he has, except with respect to trial time. As noted earlier, there was no need for two attorneys to be present throughout the trial of this straightforward section 1983 action. Thus, attorney Cohen will be compensated for half of the time he spent in trial, or fifteen hours. Deducting that amount, as well as the twenty-two hours he billed for travel, the court finds that attorney Cohen is entitled to be compensated for 117 hours of legal work at the rate of $ 150.00, or $ 17,550.00. He is also entitled to compensation at the rate of $ 65.00 for his twenty-two hours of travel time, or $ 1,430.00.
In addition to his fees, attorney Cohen is also seeking "expenses" in the amount of $ 1,007.00. These costs include $ 603.00 for lodging for four nights; $ 120.00 for his food for four days; $ 80.00 for gas and tolls; and $ 204.00 for clothes for plaintiff Blissett. Cohen Aff., attachment thereto. No documentation has been provided to substantiate these expenses, and so the court will disallow a third of those expenses. See Berry, supra, 947 F. Supp. at 653. Moreover, as to the costs of plaintiff's clothes, the court finds that is not a "reasonable out-of-pocket expense incurred by the attorney and which [is] normally charged fee paying clients[,]"
and thus, attorney Cohen will not be reimbursed for that expenditure. Consequently, attorney Cohen is entitled to be compensated in the amount of $ 535.00 for his expenses. Thus, the total award (fees and expenses) to attorney Cohen is $ 19,515.00.
c. Attorney Smith
In accordance with the hourly rates previously discussed, the court finds that attorney Smith is entitled to payment of $ 2,612.25 for the 40.25 hours of travel time which she billed.
For the reasons already discussed, the court will divide by one half the time expended by attorney Smith attending the trial of this action, as well as the time expended reviewing the file where the justification for such review is not readily apparent from her time records. This results in a reduction from thirty to fifteen hours of compensable trial time; and a reduction from eleven to 5.5 hours for compensable time expended reviewing the file. Attorney Smith's time is subject to one further reduction, and that is for time expended preparing for trial. Based upon her time records, attorney Smith expended thirty-four hours preparing for trial.
The court will reduce that figure by one-third, however, in keeping with its earlier observation that this is a trial which easily could have been conducted by one attorney.
Attorney Smith's time sheet also contains a couple of administrative tasks for which she will be compensated at the rate of $ 50.00.
Specifically, she is entitled to $ 50.00 per hour for the .25 hours expending transmitting a FAX to attorney Burns on July 19, 1996, and the 1.50 hours expended "assembling . . .pretrial memo/letter to Court[.]" Smith Aff., attachment thereto at 2. Attorney Smith is not entitled to payment, however, for the one hour she spent on January 13, 1997, preparing jury instructions,
because, in the court's opinion, that effort was duplicative in that jury instructions previously had been prepared by attorney Burns. Taking into account the foregoing, the court finds that attorney Smith is entitled to be compensated for 202.90 hours of legal work, which includes time expended on this fee motion, at the rate of $ 150.00 per hour, or $ 30,435.00. Additionally, she is entitled to be compensated for 40.25 hours of travel time at the hourly rate of $ 65.00, or $ 2,616.25, and at the hourly rate of $ 50.00 for the 1.75 hours she expended on administrative tasks. Accordingly, attorney Smith's total fee award is $ 33,138.75.
To conclude, the court grants plaintiff Donovan Blissett's motion for attorneys' fees in the total amount of $ 93,403.35 ($ 40,749.75 for the services of attorney Burns; $ 19,515.00 for the services of attorney Cohen; and $ 33,138.75 for the services of attorney Smith). The defendants are directed to promptly make payment in accordance herewith.
IT IS SO ORDERED.
DATED: June 18, 1997
Neal P. McCurn
Senior U.S. District Judge