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May 26, 1999


The opinion of the court was delivered by: Kimba L. Wood, District Judge.


Plaintiffs brought suit pursuant to 42 U.S.C. § 1983, alleging deprivations of their procedural due process rights guaranteed by the Due Process Clause of the Fourteenth Amendment. Following a trial that ended on December 7, 1998, the jury awarded plaintiffs $50,002. Counsel for plaintiffs now move pursuant to 42 U.S.C. § 1988 for attorneys' fees in the amount of $773,00.50 and costs in the amount of $186,557.03. For the reasons stated below, the application is granted in part and denied in part. Counsel for plaintiffs are entitled to an award of fees and costs in the amount of $785,968.85.

I. Discussion

The Court assumes familiarity with the facts of this case, particularly its Order of September 15, 1998, denying defendant's motion for summary judgment. That order was subsequently amended on January 6, 1999, to address issues unrelated to the present fee application (the "Amended Summary Judgment Order").

A. Attorneys' Fees Awards Under § 1988

Under § 1988, in any action or proceeding to enforce § 1983, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). The district court has discretion in determining the amount of the fee award, based on its knowledge of the circumstances of the case. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This discretion is not unconstrained. "The starting point for the determination of a reasonable fee is the calculation of the lodestar amount. . . . In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours, as well as hours dedicated to severable unsuccessful claims." Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (citing Hensley, 461 U.S. at 433-35, 103 S.Ct. 1933). The focus of the Court's inquiry, therefore, should be the determination of the appropriate lodestar amount.

Although this lodestar amount should be presumed to represent a reasonable fee, see Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 98 (2d Cir. 1997), the Court may turn to "considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the `results obtained.'" Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (citation omitted). However, these "factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate." Id. at 434 n. 9, 103 S.Ct. 1933; see also Greenbaum v. Svenska Handelsbanken, N.Y., 998 F. Supp. 301, 303-04 (S.D.N.Y. 1998) (quoting Hensley). Because several of the challenges defendants raise to the fee application address the reasonableness of plaintiffs' counsel's rates and the number of hours expended on this case, the Court will first consider whether defendants' claims should have any effect on the Court's calculation of the lodestar amount.

B. Relationship Between Outcome and Award

Defendants suggest that a reduction in the lodestar amount is warranted for two reasons: first, the amount of damages awarded at trial was significantly smaller than the amount requested in fees; and second, many of plaintiffs' claims were dismissed in the Court's Summary Judgment Order. The Court will consider these claims in turn.

Defendants assert that the "extremely modest jury verdict" of "a token punitive damages award" compels a reduction of the lodestar amount. (See Def. Mem. at 21, 23; see also id. at 1 (contrasting "exorbitant award of attorneys' fees sought" with "the modest [jury] award of $50,002, less than the minimum diversity jurisdictional amount under the federal statutes.")) The amount of money plaintiffs recovered is plainly irrelevant to the present motion. In United States Football League v. National Football League, 887 F.2d 408, 415 (2d Cir. 1989), the Second Circuit approved an award of attorneys' fees of $5.5 million dollars in a case in which plaintiffs were awarded a mere three dollars. See id. at 410-11. A few months ago, the Second Circuit explicitly rejected an approach that would have reduced an attorneys' fees award on the basis of the amount of damages ultimately awarded at trial:

    Congress enacted fee-shifting in civil rights
  litigation precisely because the expected monetary
  recovery in many cases was too small to attract
  effective legal representation. See City of
  Riverside v. Rivera, 477 U.S. 561, 575, 106 S.Ct.
  2686, 91 L.Ed.2d 466 (1986) (plurality opinion)
  ("Congress did not intend for fees in civil rights
  cases . . . to depend on obtaining substantial
  monetary relief."). Were we to adopt the "billing
  judgment" approach that the district court advocates,
  we would contravene that clear legislative intent by
  relinking the effectiveness of a civil rights
  plaintiff's legal representation solely to the dollar
  value of her claim. As a near-unanimous Supreme Court
  reiterated in Blanchard v. Bergeron, 489 U.S. 87,
  109 S.Ct. 939, 103 L.Ed.2d 67 (1989), "a civil rights
  plaintiff seeks to vindicate important civil and
  constitutional rights that cannot be valued solely in
  monetary terms," id. at 96, 109 S.Ct. 939 (quoting
  Rivera, 477 U.S. at 574, 106 S.Ct. 2686), and we
  are unwilling to hold that the plaintiff's attorney
  should calculate the value of her client's rights in
  just those "monetary terms."

Quaratino, 166 F.3d at 426 (internal citations omitted); see also DiFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir. 1985) ("We believe a reduction made on the grounds of a low award to be error unless the size of the award is the result of the quality of representation."); Broome v. Biondi, 17 F. Supp.2d 230, 241 n. 11 (S.D.N.Y. 1997) ("The fact that third-party defendant's fee award is larger than the damages awarded to the plaintiff is irrelevant."). The fact that the requested fees are significantly greater than the amount plaintiffs recovered at trial should not, therefore, be part of the Court's analysis.

Defendants' more substantive objection is that because plaintiffs did not succeed on all their claims, counsel should not be permitted to seek fees for hours expended in support of these claims. Defendants argue that because plaintiffs did not prevail on their claim that defendants' failure to provide pre-removal notice and opportunity to be heard violated the Due Process Clause (see Amended Summary Judgment Order at 37), hours devoted to this claim should be excluded.

The Supreme Court has stated that "`the most critical factor' in determining the reasonableness of a fee award `is the degree of success obtained.'" Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). Fees may be awarded for unsuccessful claims only when they are "`inextricably intertwined'" or "`involve a common core of facts or [are] based on related legal theories.'" Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir. 1996) (quoting Hensley, 461 U.S. at 435, 103 S.Ct. 1933); see also Grant v. Bethlehem Steel Corp., 973 F.2d 96, 101 (2d Cir. 1992). The Court must evaluate whether the degree of plaintiffs' success merits granting the fee application in its entirety, or whether a reduction is warranted based on the degree of success. See United States Football League, 887 F.2d at 415 (affirming reduction of award by 20% to reflect limited success); Ragin v. Harry Macklowe Real Estate Co., 870 F. Supp. 510, 523 (S.D.N Y 1994) (reducing award by 50%), aff'd in part, rev'd in part on other grounds, 6 F.3d 898 (2d Cir. 1993).

In its opinion on defendants' summary judgment motion, the Court noted that plaintiffs presented three claims: that defendants violated the Due Process Clause by "(1) removing Andrew from Ms. Rodriguez's home on March 18, 1994 without providing Ms. Rodriguez with pre-removal notice and an opportunity to be heard; (2) not providing timely notice of this removal or timely post-removal opportunity to be heard, and (3) not providing Ms. Rodriguez a timely opportunity to contest McCloskey's denial of her requests to visit Andrew." (Amended Summary Judgment Order at 30-31.) After detailed analysis, the Court determined that plaintiffs' first claim should be dismissed (see id. at 31-37), but that plaintiffs' second and third claims should proceed to trial (see id. at 37-46). Viewed solely in terms of claims made, therefore, it could be reasoned that plaintiffs prevailed on two of three claims.*fn1 Furthermore, defendants' decision to remove Andrew without prior notice involves a set of facts distinct from defendants' post-removal conduct. Plaintiffs' claims related to the removal itself and the lack of prior notice do constitute unsuccessful claims.

However, all of plaintiffs' claims rested on the central contention that "there is a constitutionally protected liberty interest in the stability and integrity of the relationship between such a foster mother and foster child." (Id. at 2.) Thus plaintiffs' claims certainly involved "`related legal theories.'" Reed, 95 F.3d at 1183 (quoting Hensley, 461 U.S. at 435, 103 S.Ct. 1933). Plaintiffs' lack of success in extending these protections to pre-removal notice and an opportunity to be heard limits, but does not undermine, the basic thrust of plaintiffs' argument. As a practical matter, many of the hours billed in this case would have been devoted to plaintiffs' basic constitutional argument, with a relatively small share devoted to the extension of this principle in the specific context of defendants' alleged failure to provide pre-removal due process protections. As ...

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