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MARISOL A. EX REL. FORBES v. GIULIANI

August 30, 2000

MARISOL A., BY HER NEXT FRIEND, REV. DR. JAMES ALEXANDER FORBES, JR., ET AL., PLAINTIFFS,
V.
RUDOLPH W. GIULIANI, MAYOR OF THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ward, District Judge.

    OPINION

Plaintiffs, who were represented by Children's Rights, Inc. ("CRI"), Schulte, Roth and Zabel, LLP ("Schulte"), and Lawyers for Children, Inc. ("LCI"), move for attorneys' fees and expenses pursuant to 42 U.S.C. § 1988. They initially sought $9,359,569.39 in fees and out-of-pocket expenses, but later reduced their request to $7,997,313.67. For the reasons hereinafter stated, the Court awards plaintiffs $5,835,116.78 in attorneys' fees and expenses.

BACKGROUND

The Court assumes familiarity with the underlying facts of this case, which are more fully reported in Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996) (denying motion to dismiss and certifying class) ("Marisol I"), aff'd, 126 F.3d 372 (2d Cir. 1997), and Marisol A. v. Giuliani, 185 F.R.D. 152 (S.D.N.Y. 1999) (approving settlement agreements) ("Marisol II"), aff'd sub nom., Joel A. v. Giuliani, 218 F.3d 132 (2d Cir. 2000). Nevertheless, the Court will provide a brief overview of the facts which are relevant to the instant motion.

Plaintiffs filed a complaint in this Court on December 13, 1995, alleging systemic deficiencies in the administration of the New York City child welfare system. The complaint sought declaratory and injunctive relief against various officials of the City of New York (the "City defendants" or "defendants") and various officials of the State of New York who were responsible for the operation or oversight of New York's child welfare system.*fn1

At the same time they filed their complaint, plaintiffs moved for class certification seeking to represent a class consisting of all children who were in or would be in the custody of the City's child welfare system, who were or would be at the risk of abuse or neglect, and whose status was known to the responsible City agency. Defendants moved to dismiss the complaint and opposed the motion for class certification. The Court denied defendants' motion to dismiss and granted plaintiffs' motion for class certification in an opinion dated June 18, 1996. See generally Marisol I, 929 F. Supp. 662.

On the eve of trial, which was to commence on July 27, 1998, the parties informed the Court that they were engaged in settlement negotiations. The trial was adjourned and on December 2, 1998, after four months of negotiations, two Settlement Agreements were filed with the Court. One Settlement Agreement was between plaintiffs and the City defendants and the other was between plaintiffs and the State. The Court approved the Settlement Agreements on March 31, 1999. See generally Marisol II, 185 F.R.D. 152.

The Settlement Agreement between plaintiffs and the City defendants established an Advisory Panel of experts in the child welfare field. Id. at 157. The Administration for Children's Services ("ACS") agreed to cooperate with the Advisory Panel and to provide the Panel with full access to information, documents, and personnel. Id. at 158. The Advisory Panel is required to produce reports to determine whether ACS is acting in good faith in making efforts toward reform in certain areas. Id. If the Advisory Panel determines that ACS is not acting in good faith, plaintiffs may seek judicial relief. Id. The City Settlement Agreement, which expires on December 15, 2000, contains certain limitations on the filing of lawsuits through covenants not to sue and release provisions. Id. at 158-59.

Plaintiffs filed the instant motion while an appeal of the Court's approval of the Settlement Agreements was pending. The Court delayed ruling on the motion until the appeal was decided. The Court's decision was affirmed on July 10, 2000.

DISCUSSION

In federal civil rights actions, "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 parties agree that plaintiffs are prevailing parties for purposes of § 1988. Therefore, the only issue remaining is determining an award of reasonable attorney's fees.

I. Calculating Fees With the "Lodestar" Method

"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 v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The result of this calculation, the so-called "lodestar" figure, is presumed to be the reasonable fee. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998) (citations omitted). Plaintiffs have the burden of submitting evidence supporting the hours worked and rates claimed. Hensley, 461 U.S. at 433, 103 S.Ct. 1933. If the documentation is inadequate, for example, if it reflects excessive or redundant time, the court may reduce the award accordingly. Id. at 43334, 103 S.Ct. 1933.

The Court will first determine plaintiffs' attorneys' reasonable hourly rates. It will then decide how many hours were reasonably expended on the litigation and consider whether any reduction in the lodestar amount is warranted.

A. Calculating the Reasonable Hourly Rate

In determining the reasonable hourly rate to be applied, the Court should look to market rates "`prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'" Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The relevant community to which the court should look is the district in which the case was brought. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987). The rates used by the Court should be "`current rather than historic hourly rates.'" Gierlinger, 160 F.3d at 882 (quoting Missouri v. Jenkins, 491 U.S. 274, 284, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)).

Furthermore, non-profit civil rights attorneys should receive a "`fully compensatory fee,'" Jenkins, 491 U.S. at 286, 109 S.Ct. 2463 (quoting Hensley, 461 U.S. at 435, 103 S.Ct. 1933), "comparable to what `is traditional with attorneys compensated by a fee-paying client.'" Id (quoting S.Rep. No. 94-1011, p. 6 (1976), U.S. Code Cong. & Admin. News 1976, pp. 5908, 5913); see also Blum, 465 U.S. at 895, 104 S.Ct. 1541 ("The statute and legislative history establish that `reasonable fees' under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.").

Plaintiffs are also entitled to seek fees for paralegal services. See Jenkins, 491 U.S. at 286-87, 109 S.Ct. 2463; United States Football League v. National Football League, 887 F.2d 408, 415-16 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990). Like the work performed by attorneys, the work performed by paralegals is billed by using the prevailing hourly rate for paralegal services in the community. United States Football League, 887 F.2d at 416.

After researching recent fee awards in civil rights cases, the Court finds that a reasonable rate scale is as follows: $350 for attorneys with more than fifteen years of experience, $300 for attorneys with ten to fifteen years of experience, $230-250 for attorneys with seven to nine years of experience, $180-200 for attorneys with four to six years of experience, and $130-150 for attorneys with one to three years of experience. See, e.g., Robinson v. Instructional Sys., Inc., 105 F. Supp.2d 283, 286-87 (S.D.N.Y. 2000) ($250 for attorney with fifteen years of experience and $175 for attorney with four to five years of experience in Title VII case); Pascuiti v. New York Yankees, 108 F. Supp.2d 258, 266 (S.D.N.Y. 2000) ($250 for attorneys at small firm with twenty-nine and twenty-eight years of experience); National Helicopter Corp. of America v. City of New York, 96 Civ. 3574, 1999 WL 562031, at *6 (S.D.N.Y. July 30, 1999) ($300 for partners and $140 for associates is reasonable for attorneys at large law firm); Ward v. New York City Transit Auth., 97 Civ. 8550, 1999 WL 446025, at *10 (S.D.N.Y. June 28, 1999) ($300 for experienced civil rights litigator, $175, $150, and $125 for associates with varying levels of experience); Skold v. American Int'l Group, Inc., 96 Civ. 7137, 1999 WL 405539, at *7 (S.D.N.Y. June 18, 1999) ($400 for experienced civil rights litigator who provided overall direction and strategy, $275 for attorney who served as lead counsel, $225 for attorney who served as co-lead counsel, and $175 for associate), aff'd, 205 F.3d 1324 (2d Cir. 2000); Perry v. S.Z. Restaurant Corp., 95 Civ. 5424, 1999 WL 370648, at *1 (S.D.N.Y. June 8, 1999) ($275-300 for senior partner, $250 for senior associate, $195-225 for junior associate); Rodriguez v. McLoughlin, 84 F. Supp.2d 417, 421-23 (S.D.N.Y. 1999) ($425 for senior partner at large firm who was an experienced civil rights lawyer, $240 for attorney at large firm with four years of experience, and $175 for attorney at large firm with two years of experience); TM Park Ave. Assocs. v. Pataki, 44 F. Supp.2d 158, 166-68 (N.D.N.Y. 1999) (applying Southern District rates and awarding $275 to senior partners at large firms, $200 for senior associates, and $175 for junior associates), vacated on other grounds, 214 F.3d 344 (2d Cir. 2000); Broome v. Biondi, 17 F. Supp.2d 230, 237 (S.D.N.Y. 1997) ($295-320 for senior partners at large firm, $290 for junior partners, and $175-265 for associates based on varying levels of experience); Williams v. New York City Hous. Auth., 975 F. Supp. 317, 323 (S.D.N.Y. 1997) ($250 for junior partners, $200 for senior associates, $150 for mid-level associates, and $135 for junior associates); Wilder v. Bernstein, 975 F. Supp. 276, 282 (S.D.N.Y. 1997) (awarding attorneys at CRI $300 for M. Lowry, $220 for S. Lambiase, and $130 for R. Kimura); Kim v. Dial Serv. Int'l Inc., 96 Civ. 3327, 1997 WL 458783, at *16-17 (S.D.N.Y. Aug. 11, 1997) ($250 for attorney with eighteen years of experience and $175 for attorney with five years of experience), aff'd, 159 F.3d 1347 (2d Cir. 1998), cert. denied, 525 U.S. 1140, 119 S.Ct. 1030, 143 L.Ed.2d 39 (1999); Collins v. Stolzenberg, 970 F. Supp. 303, 304 (S.D.N.Y. 1997) ($250 for experienced civil rights litigator); Bridges v. Eastman Kodak Co., 91 Civ. 7985, 1996 WL 47304, at *11 (S.D.N.Y. Feb. 6, 1996) ($250 for attorneys with thirty and twenty years of experience in civil rights litigation and $200 for attorney with seven years of experience), aff'd, 102 F.3d 56 (2d Cir. 1996), cert. denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997); Helbrans v. Coombe, 890 F. Supp. 227, 233-34 (S.D.N.Y. 1995) ($350 for experienced civil rights litigator, $300 for senior partners, $250 for junior partners, $225 for senior associates, $175 for mid-level associates, and $125 for junior associates).

1. CRI

With respect to Marcia Robinson Lowry, the director of CRI and lead attorney in this case, plaintiffs request an hourly rate of $450. Notwithstanding the rate scale described above, Ms. Lowry is awarded $375 per hour as lead attorney and because she has great expertise in child welfare litigation. Ms. Lowry has been working on child welfare matters since the early 1970s. She is the founder and executive director of CRI and brings with her a level of experience in, and understanding of, the issues that undoubtedly conferred a considerable benefit on the plaintiffs. The remaining CRI attorneys' fees will be calculated as follows:

Attorney Average Level of Hourly Rate Experience*fn2
R. Firestein 15 $350
J. Kirklin 15 350
M. Stone 15 350
R. Dahlberg 11 300
S. Lambiase 10.5 300
E. Rodriguez 7 230
D. Dorsky 7 230
M. Peters 6 200
K. Schiller 6 200
C. Levine 5.5 200
E. Thompson 5 190
D. Eviatar 4.5 190
M. Delone 3 150
R. Park 3 150
A. Gilbert 3 150
R. Levine 3 150
R. Kimura 2 140
A. Park 1 130
S. Nossel 1 130
  In addition, CRI seeks fees for the work performed by its paralegals at an hourly rate of $75. Defendants oppose this rate and argue that the prevailing rate in this district is $60-75. In Wilder, this Court approved an hourly rate of $60-75 for paralegals at CRI. 975 F. Supp. at 282. Soon after Wilder, this Court approved an hourly rate of $75 for paralegals in another civil rights action. See Williams, 975 F. Supp. at 323. The cases cited by defendants indicate that the prevailing market rate for paralegal services is still within the range of $60-75. Since an hourly rate of $75, is within the range proposed by defendants and appears reasonable, the Court has determined to apply that rate to this case.*fn3

2. Schulte

Plaintiffs propose rates for Schulte in accordance with the hourly rates actually charged to the firms' fee-paying clients in the normal course of the firm's business. The hourly rates requested for Schulte range from $140 for first year associates to $515 for the senior partner, David Brodsky. According to the affidavit of Mr. Brodsky, these rates are consistent with those charged by other large New York City law firms.

Based on the cases cited above, however, the Court finds that a more reasonable rate scale is the one the Court used for CRI attorneys. Because Mr. Brodsky, a seasoned litigator with over thirty years of experience, served as co-lead counsel with Ms. Lowry and made a significant contribution to the settlement of the case, he is also awarded $375 per hour.

Although, courts have recognized that attorneys at large "Wall Street" law firms may receive higher compensation due to the higher overhead and additional costs associated with practice at such firms, see, e.g., Rodriguez, 84 F. Supp.2d at 421-22 (and cases cited therein), the Court finds that the rate scale used above adequately takes into account these additional costs and is consistent with hourly rates awarded to other large firms in this district. See, e.g., National Helicopter, 1999 WL 562031, at *6 (finding that rates of $300450 for partners and $140-295 for associates at Dewey Ballantine are reasonable at the lower end of those scales); Rodriguez, 84 F. Supp.2d at 422 (awarding attorneys at Chadbourne & Parke $425 for senior partner who was an experienced civil rights lawyer, $240 for attorney with four years of experience, and $175 for attorney with two years of experience); TM Park Ave. Assocs., 44 F. Supp.2d at 166-68 (applying New York City rates and awarding senior partner at Stroock Stroock & Lavan $275 hourly rate instead of requested $460 to $505 rate, and awarding partners at Debevoise & Plimpton and Rosenman & Colin $275 hourly rate, while awarding $200 to senior associates and $175 to junior associates).*fn4

Therefore, in addition to Mr. Brodsky's hourly rate of $375, the Schulte attorneys' fees will be calculated according to the following hourly rates:

Attorney Average Level of Hourly Rate Experience
J. Velona 9 $250
K. Schiller 8 240
A. Freedman 7 230
S. Davidson 3 150
A. Passanante 2 140
E. Schijf 1 130
M. Craner 1 130
S. Aronowitz 1 130
J. McBride 1 130

Like CRI, Schulte also seeks fees for work performed by its paralegals. However, unlike CRI, seeks hourly rates far in excess of $75 per hour. According to Schulte, is hourly rates range from $65-150, depending on level of experience, paralegals' Plaintiffs have cited several cases in which courts have awarded more experienced paralegals at large law firms an hourly rate higher than $75, but none awarded paralegals as much as the $150 requested by plaintiffs for Schulte paralegals. See, e.g., Rodriguez, 84 F. Supp.2d at 427 (awarding paralegals between $75 and $130 per hour depending on level of experience). The Court will apply the following rates to Schulte's paralegals, which are reasonable and within the range of rates awarded in other cases:

Paralegal Average Level of Hourly Rate Experience
K. Brombach 15 $110 M. Alston 14 110 D. McCracken 8 90 P. Hamlen 6 75 Others - 75*fn5

3. LCI

Karen Freedman is the co-founder and executive director of LCI. She has an average of seventeen years of experience over the course of the litigation, and therefore, will be compensated at an hourly rate of $350.

B. Number of Hours Reasonably Expended

In determining whether the hours expended by the parties was reasonable, the Court must

"examine the hours expended by counsel and the value of the work product of the particular expenditures to the client's case. . . . In making this examination, the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience ...

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