A prevailing party is entitled to reimbursement for the time
expended in the preparation of the fee application. See Gagne,
594 F.2d at 343-44. Indeed, "courts within this Circuit have
awarded fee application awards in the range of 8 to 24 percent of
the total time claimed." Natural Resources Defense Council, Inc.
v. Fox, 129 F. Supp.2d 666, 675 (S.D.N.Y. 2001) (quoting Davis
v. City of New Rochelle, 156 F.R.D. 549, 561 (S.D.N.Y. 1994));
see also Davis, 156 F.R.D. at 561 (stating that in Trichilo v.
Secretary of Health & Human Servs., 823 F.2d 702 (2d Cir. 1987),
reaff'd and extended, 832 F.2d 743 (2d Cir. 1987), the Second
Circuit has upheld fee awards where the time spent on fee
application constituted 24% of total time claimed). However, the
claimed 20.5 hours is clearly excessive in this case. Instead,
Flamm and Mednick shall be compensated for 15.5 hours of the time
expended on the fee application. Each attorney shall be deducted
2.5 hours of time.
In Knoeffler, the defense attorney expended approximately
7.25 hours in preparing his fee application in which he submitted
a memorandum of law in support of his position. 126 F. Supp.2d at
316-17. In contrast, neither Flamm nor Mednick submitted any
memorandum of law in support of the instant fee application even
though they did submit a reply memorandum of law. Moreover, Flamm
contends that he expended 12.25 hours preparing an affidavit
twelve pages in length and which provides four legal citations.
This is clearly excessive. In White v. White Rose Food,
86 F. Supp.2d 77 (E.D.N.Y. 2000), rev'd for other reasons,
237 F.3d 174 (2d Cir. 2001), Judge Spatt of the Eastern District of New
York similarly found Flamm and Mednick's claimed time spent in
preparation of their fee application excessive. He also reduced
their hours to 15. See id. at 80 (stating that "[c]ounsel
merely needed to collect the relevant time sheets, draft a short
affidavit and memorandum of law and appear for oral argument.").
Defendant Furumoto Realty contends that other entries were
excessive. Examples include expending: .5 hours drafting two
letters that were one and two sentences in length; .5 hours
preparing two deposition notices which were identical in form
except for the name of the deponent and the time of the
deposition; .5 hours drafting a letter on August 16, 2000; .5
hours for drafting two letters on November 30, 2000; 3.25 hours
reviewing submissions on December 8 and 21, 2000; and .5 hours
drafting a letter on December 28, 2000. (Berg Aff. ¶ 7, Ex. 4.)
We disagree. It is clear that several of the letters drafted by
plaintiffs' attorneys forwarded attached documents that had to be
read and analyzed. Furthermore, the notices of depositions had to
be cleared with the defense counsel and a court reporter had to
Furthermore, we agree with plaintiffs that the .75 hours spent
serving plaintiffs' trial documents and faxing a memorandum to
this Court should be compensated at a full attorney's rate. The
courts in this district are in agreement that "[f]iling,
delivery, service of papers and other similar administrative
tasks are not usually considered recoverable expenditures of time
for attorneys' fees." Broome, 17 F. Supp.2d at 236 (citing
Society for Good Will to Retarded Children v. Cuomo,
574 F. Supp. 994, 999 (E.D.N.Y. 1983), vacated on other grounds,
737 F.2d 1253 (2d Cir. 1984)); Giuliani, 111 F. Supp.2d at 390-91.
Instead, these are considered clerical tasks and should be billed
in accordance therewith, e.g., $50 per hour. See Lawson v. City
of New York, No. 99 Civ. 10393, 2000 WL 1617014, at *2 (S.D.N Y
Oct.27, 2000). However, in this case, it appears that the
entries "service of Plaintiffs' trial documents on Defendants"
and "Fax memo to Judge Conner" do not describe the actual
clerical tasks but the preparation of the trial documents prior
to their service and the writing of the memorandum to this Court.
Our conclusion is based on the fact that there are no other
entries on these dates that compensate for the writing or
preparation of the documents in question. Therefore, plaintiffs'
counsel shall receive full compensation for such activities.
3. Adjustment of the Lodestar
Although there is a "`strong presumption' that the lodestar
represents the `reasonable fee,'" the consideration of other
factors may be lead to an increase or decrease of such figure.
City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638,
120 L.Ed.2d 449 (1992) (citations omitted). For example, the
degree of success may warrant an adjustment of the amount
awarded. See LaRouche v. Kezer, 20 F.3d 68, 71 (2d Cir. 1994).
The party requesting a departure from the lodestar has the burden
of establishing the propriety of such departure in the
calculation of a reasonable fee. See Dague, 505 U.S. at 562,
112 S.Ct. 2638; Grant v. Martinez, 973 F.2d 96, 101 (2d Cir.
The purpose behind § 1988 was to "ensure `effective access to
the judicial process.'" Hensley, 461 U.S. at 429, 103 S.Ct.
1933 (quoting H.R. REP. No. 94-1558, p. 1 (1976), U.S.Code Cong.
& Admin.News 1976, p. 5908). Both the Senate and House Reports
refer to twelve factors that should be considered in determining
the amount of the fee:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite
to perform the legal service properly; (4) the
preclusion of employment by the attorney due to
acceptance of the case; (5) the customary fee; (6)
whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the
circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the "undesirability"
of the case; (11) the nature and length of the
professional relationship with the client; and (12)
awards in similar cases.
Hensley, 461 U.S. at 430 n. 3, 103 S.Ct. 1933 (citing Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974); AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL
RESPONSIBILITY DR 2106). Flamm and Mednick argue that the
lodestar should be increased by 35% because (1) they initially
accepted the case on a contingency fee basis, (2) the case was
undesirable and (3) they achieved great success. We cannot agree
to such a large increase.
The contingency of the fee does not alone justify such an
increase. See Dague, 505 U.S. at 560-66, 112 S.Ct. 2638. The
lodestar itself "accounts for the risk counsel take in providing
representation without a fee." Amalgamated Clothing & Textile
Workers Union v. Wal-Mart Stores, Inc., No. 92 Civ. 5517, 1994
WL 74871, at *6 (S.D.N.Y. Mar.7, 1994), aff'd, 54 F.3d 69 (2d
Cir. 1995). However, the success of plaintiffs in this case does
aid our decision in adjusting the lodestar by some percentage.
The attorneys won a civil racial housing discrimination case
against a Japanese real estate broker, Korean agent, and an
African home owner. However, the success does not warrant the
requested increase. Prior to trial, plaintiffs withdrew their
claims against Kasanda. We therefore believe that a contingency
increase of 10% will be sufficient to insure competent
representation of indigent plaintiffs in the future, particularly
in view of the facts that there were no pre-trial motions, only
persons were deposed before trial and the trial lasted only three
We also agree with defendants that the lodestar should be
decreased because Flamm sat "second seat" to Mednick at the
trial. The Second Circuit has stated that prevailing parties are
not barred as a matter of law from receiving fees for the
assistance of a second attorney during the course of discovery or
court proceedings. See Carey, 711 F.2d at 1146. However, it is
reasonable to reduce the fee request when both of the attorneys
who participated in the trial seek to be compensated at top
"first seat" rates, and when some of the work was duplicative or
unnecessary. See Williams, 975 F. Supp. at 326-27. For example,
in White, Judge Spatt reduced Flamm's total hours by 10%
because he merely observed Mednick during trial. See 86
F. Supp.2d at 79-80. Similarly, in this case, we fail to see the
necessity of Flamm's presence during trial because most of his
time was spent merely observing Mednick. Mednick, an attorney
with more than 30 years experience litigating state and federal
discrimination cases, was fully capable of trying this case alone
or with a less experienced attorney to assist with the exhibits.
We therefore conclude that Flamm's hours should by reduced by
Pursuant to § 1988, in addition to compensation for attorneys'
fees, plaintiffs are also allowed to recover their attorneys'
expenses. See Carrero v. New York City Hous. Auth., 685 F. Supp. 904,
909 (S.D.N.Y. 1988), aff'd in part and rev'd in part,
890 F.2d 569 (2d Cir. 1989). A court will generally award "those
reasonable out-of-pocket expenses incurred by attorneys and
ordinarily charged to their clients." Giuliani, 111 F. Supp.2d
at 401 (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748,
763 (2d Cir. 1998)).
On February 27, 2001, plaintiffs moved to tax costs against
defendants pursuant to Local Rule 54.1. In connection therewith,
plaintiffs sought reimbursement for the $150.00 filing fee,
$630.53 for deposition transcripts and $90.00 in witness fees. On
that same day, the Clerk of the Court reduced the witness fees by
$45.00 and taxed costs against defendants in the amount of
$825.53. Plaintiffs now seek additional reimbursement in the
amount of $128.38 for postage, Federal Express delivery, train
and parking fare and on-line computer research. (Pls. Reply Mem.
Supp. Mot. Att'y Fees at 19; Flamm Aff. ¶ 28, Ex. 2.)
This Court calculated the requested costs at $188.38. However,
this includes a $12.00 expense for which the description of the
activity involved is illegible. Therefore, this cost is
disallowed. The other expenses appear reasonable. Defendants did
not object to any specific item, but requested that the
application for costs be completely rejected. However, we believe
that the prevailing parties are clearly entitled to these costs
under the Rules. Accordingly, plaintiffs are awarded additional
costs in the amount of $176.38, for a total amount of $1,001.91.
Flamm $325 per hour* 67.5 hours* 33.33% reduction = $14,625.73
Mednick $300 per hour* 109.4 hours = $32,820.00
Mauro $140 per hour* 3.5 hours = $490.00
Reduction for travel $2,375.00
Reduction time spent in connection with fee application $1,562.50
Multiplier for contingency 1.10
For the foregoing reasons, defendant Furumoto Realty's motion
for judgment as a matter of law or in the alternative a new trial
or remittitur is denied. We conclude that plaintiffs are entitled
to attorneys' fees and costs in the amount of $49,399.96.