plaintiffs attorneys are not entitled to those fees. While we
would not expect that a plaintiff would expend an inordinate
amount of time on unsuccessful settlement negotiations,
plaintiffs attorneys here only seek compensation for a
reasonable amount of time. We therefore conclude that Bergstein
and Ullrich are entitled to reimbursement for their reasonable
settlement efforts. This conclusion is consistent with the
general public policy that courts should encourage settlement
whenever possible, for to deny civil rights attorneys from
recovering fees expended during settlement efforts would create
an unnecessary disincentive to settlement. Cf. FED. R. Civ. P.
68 (rule designed to encourage settlement).
Finally, New Windsor argues that plaintiffs claim for 30.08
hours spent compiling the list of hours expended on the case and
preparing the fee application should be disallowed. It is
well-settled law that a prevailing party is entitled to
reimbursement for the time expended in the preparation of the
fee application. See Gagne v. Maher, 594 F.2d 336, 343-44 (2d
Cir. 1979); Knoeffler, 126 F. Supp.2d at 316. "The fee
application is a necessary part of the award of attorney's fees.
If the original award is warranted, . . . a reasonable amount
should be granted for time spent in applying for the award."
Donovan v. CSEA Local Union 1000, 784 F.2d 98, 106 (2d Cir.
1986). We find that Bergstein and Ullrich's expenditure of 30.08
hours in preparing the fee application is reasonable.
Furthermore, plaintiffs request amounts to approximately ten
percent of the total hours billed, which is well within the
range of past awards. See Davis v. City of New Rochelle,
156 F.R.D. 549, 561 (S.D.N.Y. 1994) ("The Second Circuit has upheld
fee awards where the time spent on the fee application was up to
24% of the total time claimed.").
2. Plaintiff's Apportionment Model
Plaintiff initially challenged twenty-one municipal sign
ordinances. Most defendants raised similar objections as to
standing and mootness and, while each ordinance contained unique
language, many were substantially similar and were challenged on
similar grounds. See Sugarman, 192 F. Supp.2d at 282.
Accordingly, Bergstein and Ullrich's fee log reflects activity
largely applicable to all defendants, even where a particular
defendant is not identified in the log. (Bergstein Aff., Ex. 1;
Ullrich Aff., Ex. 1.) Plaintiff also settled with thirteen
defendants for a total of $22,000. Recognizing that she is not
entitled to double compensation for the same work, plaintiff
proposes that the $22,000 be deducted from the fees generated
prior to January 14, 2002.*fn2 Plaintiff argues that this
Court should not make any reduction for work expended after
January 14 because, as indicated by the fee logs, the tasks
performed would have been necessary against any remaining
defendant. (Bergstein Aff. ¶ 22.) Finally, in determining each
defendant's individual contribution towards the overall
attorneys' fees, plaintiff divides the total amount of
accumulated fees by the eight defendants who declined to settle
prior to the summary judgment motion.
New Windsor challenges plaintiffs methodology, arguing that
they are solely responsible for those hours recorded on the fee
log with a specific reference to New Windsor, that they are not
responsible for any hours recorded on the fee log with specific
reference to other defendants, and that any remaining hours
should be divided by twenty-one, the total number of
original defendants. The Supreme Court has stated that "[a]
request for attorney's fees should not result in a second major
litigation," Hensley, 461 U.S. at 437, 103 S.Ct. 1933, and
district courts have broad discretion in determining the amount
of reasonable attorneys' fees. Guided by this principle, we
decline to adopt New Windsor's restrictive reading of the fee
logs, for there is little doubt that, in light of the
similarities of the ordinances involved, legal work expended
researching the constitutionality of one municipal sign
ordinance was generally applicable to the other ordinances. To
require plaintiff to maintain the exceedingly detailed fee logs
of which New Windsor implies would be overly burdensome and
would only serve to unnecessarily inflate the ultimate fee
application. However, we similarly decline to adopt plaintiffs
method to ensure that they are not twice compensated for fees
accumulated pursuing parties that eventually settled. Plaintiffs
proposal raises that possibility that they settled with the
thirteen defendants prior to January 15, 2002 at a discounted
rate and now seek to have at least some of the attorneys' fees
properly attributable to the thirteen settling defendants
subsidized by the eight defendants who declined to settle. We
therefore conclude that $45,890.30 in attorneys' fees and costs
accrued prior to January 14, 2002 should be apportioned among
the original twenty-one defendants. The remainder of the fees
shall be calculated as proposed by plaintiff. See infra Part
C. Reduction of Lodestar
Although there is a "`strong presumption' that the lodestar
represents the `reasonable fee,'" the consideration of other
factors may 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). 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 id.
Greenwood Lake argues that the amount of attorneys' fees
should be reduced because plaintiff was denied summary judgment
with respect to their argument that the Greenwood Lake ordinance
contained content-based restrictions on speech. See Sugarman,
192 F. Supp.2d at 292-95. Because the Supreme Court treats
unrelated claims as if they should have been brought in a
separate and distinct lawsuit, no fees may be awarded for
services expended on unsuccessful, unrelated claims. See
Hensley, 461 U.S. at 434-35, 103 S.Ct. 1933. Related claims
include those based upon common facts or similar legal theories.
See id. In such a case, all of the attorney's time is
considered to be spent on the litigation as a whole; the court
cannot divide the hours on a claim-by-claim basis. See id. at
435, 103 S.Ct. 1933. An important factor to consider in
determining whether to adjust the lodestar amount is the result
obtained. See LaRouche, 20 F.3d at 71.
Where a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee.
Normally this will encompass all hours reasonably
expended on the litigation, and indeed in some cases
of exceptional success an enhanced award may be
justified. In these circumstances the fee award
should not be reduced simply because the plaintiff
failed to prevail on every contention raised in the
lawsuit. Litigants in good faith may raise
alternative legal grounds for a desired outcome, and
the court's rejection of or failure to reach certain
grounds is not a sufficient reason for reducing a
fee. The result is what matters.
Hensley, 461 U.S. at 435, 103 S.Ct. 1933.
Greenwood Lake states contends that "since Greenwood was the
defendant whose sign ordinance was deemed content-neutral, . . .
this Court should issue an Order setting the attorneys' fees
which Greenwood must pay at a substantially lower number than
that which the other defendants must pay." (Gitnick Aff. at 4.)
We find this argument unpersuasive. While plaintiff did not
prevail on each of the legal theories presented as to why the
Greenwood Lake sign ordinance was unconstitutional, she
nonetheless obtained in full the desired outcome — a declaration
that the ordinance was unconstitutional. Furthermore, all
theories presented by plaintiff involved similar facts and
similar legal arguments regarding the actual or potential
suppression of political speech under the First Amendment.
Accordingly, in light of the favorable results obtained and the
relatedness of the legal claims presented, plaintiff is entitled
to complete recovery of her attorneys' fees.
Prior to January 15, 2002
Bergstein $240 per hour * 167.9 = $40,296.00
Ullrich $215 per hour * 26.02 = $5,594.30
Amount attributable to each defendant (from pool of 21) $2,185.25
January 15 through the Fee Application
Bergstein $240 per hour * 90.75 = $21,780.00
Ullrich $215 per hour * 17.60 = $3,784.00
Paralegal and Litigation Costs $1,426.32
Travel and Clerical $953.75
Amount attributable to each defendant (from pool of 8) $3,493.01
Total individual contribution for non-settling defendants $5,678.26
Fee Application Fees
Greenwood Lake: Bergstein $240 per hour * 2.25 = $540.00
New Windsor: Bergstein $240 per hour * 10.75 = $2,580.00
Total Fees and Costs
Greenwood Lake $6,218.26
New Windsor $8,258.26