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United States District Court, Southern District of New York

April 28, 2003


The opinion of the court was delivered by: Robert L. Carter, United States District Judge


Plaintiffs, New York State National Organization for Women, et al., apply for attorneys' fees and costs in connection with the granting of preliminary and permanent injunctions pursuant to orders of the court, dated April 3, 1998, and October 26, 1998.


This motion for attorneys' fees arises from the many decisions engendered by a 42 U.S.C. § 1983 class action lawsuit alleging that the New York State Division of Human Rights' (the "Division") administrative practices and procedures violated plaintiffs' constitutional rights to procedural due process and equal protection. Plaintiffs' claims in their original suit were threefold. Their foremost claim was that protracted delays in the Division's handling of claims violated their Fourteenth Amendment rights to procedural due process and equal protection. Second, notice deficiencies preceding the administrative convenience dismissal ("ACD") of class members' claims violated procedural due process. Lastly, plaintiffs alleged that the institution of particular intake rules (the "1995 Intake Rules") that authorized Division personnel to arbitrarily prohibit class members from filing valid discrimination complaints violated the Supremacy Clause and their right to procedural due process.

In order to understand the present application for fees, a brief summary of the preceding motions and decisions is appropriate. In NOW v. Cuomo, 182 F.R.D. 30 (S.D.N.Y. 1998) (Carter, J.), on plaintiffs' motion, the court preliminarily enjoined the use and enforcement of the 1995 Intake Rules. At the subsequent bench trial for injunctive and declarative relief, the court granted plaintiffs a broad permanent injunction for all of their claims, specifically prohibiting the Division from ever implementing the 1995 Intake rules, as well as finding that the disputed procedures violated plaintiffs' due process rights. NOW v. Pataki, 189 F.R.D. 286 (S.D.N.Y. 1999) (Carter, J.).

Defendants appealed this decision to the Second Circuit, whose decision, NOW v. Pataki, 261 F.3d 156 (2d Cir. 2001), cert. denied, 534 U.S. 1128 (2002), this court had the opportunity to analyze on defendant's motion to dismiss and plaintiffs' cross motion for curative notice relief, in NOW v. Pataki, 228 F. Supp.2d 420 (S.D.N.Y. 2002) (Carter, J.). This court found that, although the Second Circuit reversed this court's finding that the notice deficiencies and protracted delays were unconstitutional deprivations of procedural due process, the Second Circuit did not consider or rule on the propriety of the court's permanent injunction of the 1995 Intake Rules. See NOW, 228 F. Supp.2d at 426-27. As a result, the court denied defendants' motion to dismiss the complaint in its entirety and retained jurisdiction over all issues arising out of the permanent injunction of the 1995 Intake rules.*fn1

During this litigation, plaintiffs were represented primarily by Raff & Becker, LLP, a small New York firm. David Raff, a partner, was the lead attorney, and was assisted by Robert Becker, partner, and three associates, Stephanie Davis, Sima Assad, and Susan Salazar. Their respective qualifications are as follows. Raff is a 1968 graduate of Brooklyn Law School, and was admitted to the New York bar in 1969. Since his admission, he has focused on labor and employment law issues, both in private practice and in academia.*fn2 He has litigated numerous civil rights class actions, (see Becker Dec. ¶ 30), and is currently serving as a Special Master in two civil rights class actions before this court. See EEOC v. Local 28 of the Sheet Metal Workers' Int'l Ass'n, et al, 71 Civ. 2877 (S.D.N.Y. 1975) (Carter, J.); EEOC v. Local 580, Int'l Ass'n of Bridge, Structural and Ornamental Ironworkers, et al., 669 F. Supp. 606 (S.D.N.Y. 1987) (Carter, J.). Becker graduated from Columbia Law School in 1967 and was admitted to practice in 1968. In his thirty years of practicing law, Becker has focused on civil rights and labor and employment law, successfully handling numerous civil rights class actions. (See Becker Dec. ¶ 34.) Davis graduated in 1995 from Oregon Law School, and joined Raff & Becker as an associate in 1996. Plaintiffs do not submit information on the qualifications or background of Assad or Salazar.

In further support of plaintiffs' motion, Raff & Becker submitted time sheets for Raff, Becker, Davis, Assad, and Salazar. These time sheets show that between 1996 and 1998, Raff billed 198.4 hours, Becker billed 183.3 hours, Davis billed 101.2 hours, Assad billed 23.4 hours, and Salazar billed 13.2 hours, with regard to this litigation. (See Becker Dec. ¶ 17, Ex. 2.) Raff & Becker also submitted its fee schedule for 2002, which stipulates the following rates per hour: Raff, $430.00, Becker, $400.00, and Salazar, $195.00. (See Becker Dec. Ex. 4.) In addition, plaintiffs submit the following hours and hourly rate for Gerald Dunbar, the attorney for one of the individual plaintiffs: 8.5 hours at $275.00 per hour. (See Becker Dec. ¶ 19, Ex. 3.)


Pursuant to 42 U.S.C. § 1988(b), the prevailing party in a 42 U.S.C. § 1983 action may be awarded a reasonable attorney's fee as part of its costs. The court's discretion is properly invoked where the party applying for a fee obtained some type of relief based on the merits of his claim. See Haley v. Pataki, 106 F.3d 478, 483 (2d Cir. 1997)

The calculation of a reasonable fee to be awarded a prevailing plaintiff is based on the lodestar method, multiplying the number of hours reasonably worked by a reasonable hourly rate. Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998). In determining reasonable hourly rates, courts look at market rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Gierlinger, 160 F.3d at 882. This can be achieved by considering attorney's fees approved in comparable cases, as well as the court's own knowledge of current market rates for attorneys of comparable skill, experience and reputation. See Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997)

While plaintiffs had two of their district court victories overturned by the Second Circuit, their success in obtaining a permanent injunction with regard to the 1995 Intake rules remains intact. The court is satisfied that its decision in this regard was based on the merits of plaintiffs' claim, namely that enforcement of the rules would lead to continued deprivations of constitutional rights and that a permanent injunction was appropriate due to the court's estimation that without one, defendants were reasonably likely to resume using the disputed intake procedures. See NOW, 189 F.R.D. at 313-14. This clearly establishes plaintiffs as the prevailing party with regard to this issue and in the court's discretion, entitles them to reasonable attorneys' fees and costs incurred in pursuit of this victory.

After reviewing recent fee awards for similar cases litigated by small firms, the court finds that the fees for Raff and Becker, $430.00 and $400.00 per hour respectively, are on the high end but still within a reasonable range. See, e.g., Davis v. New York City Housing Authority, No. 90 Civ. 628, 2002 WL 31748586, at *2-3 (S.D.N.Y. Dec. 6, 2002) (Sweet, J.) (attorney with 15 years of experience awarded $375 per hour); Green v. Torres, No. 98 Civ. 8700, 2002 WL 922174, at *1 (S.D.N.Y. May 7, 2002) (Rakoff, J.) (awarding $400 rate for accomplished civil rights litigator with more than 20 years of experience) vacated on other grounds by Green v. Torres, No. 98 Civ. 8700, 2003 WL 1025241 (2d Cir. Mar. 7, 2003); Baird v. Boies, Schiller & Flexner, 219 F. Supp.2d 510, 523 (S.D.N.Y. 2002) (Chin, J.) (awarding $375 per hour for a partner at a small firm with 14 years of experience); Brenlla v. LaSorsa, No. 00 Civ. 5207, 2002 WL 1059117, at *13 (S.D.N.Y. May 28, 2002) (Francis, M.J.) (partner with 12 years of experience with subject matter awarded $345 per hour); Gonzalez v. Bratton, 147 F. Supp.2d 180, 212 (S.D.N.Y. 2001) (Marrero, J.) (award of $390 per hour for lead attorney); Marisol v. Giuliani, 111 F. Supp.2d 381, 387 (S.D.N.Y. 2000) (Ward, J.) (award of $375 per hour for attorney with expertise in subject matter of litigation and more than 20 years of experience); Skold v. Am. Int'l Group, Inc., No. 96 Civ. 7137, 1999 WL 405539, at *7 (S.D.N.Y. June 18, 1999) (Baer, J.) (lead attorney responsible for direction and strategy of litigation awarded $400 per hour).

In comparison to the cited cases, Raff and Becker both have more than 30 years of experience with civil rights and labor and employment law. It is also significant, that these same hourly rates were awarded to Raff and Becker recently in Barcia v. Sitkin, No. 79 Civ. 5831, and Municipal Labor Committee v. Sitkin, No. 79 Civ. 5899, and that they charge these rates as a matter of course. See Lilly v. County of Orange, 910 F. Supp. 945, 949 (S.D.N.Y. 1996) (Conner, J.) ("The actual rate that counsel can command in the market place is evidence of the prevailing market rate.")

The hourly rate of $175.00 per hour requested for Davis, however, is excessive. At the time Davis worked on this case, she was fresh out of law school and had no demonstrated experience in the area of civil rights or labor and employment law. The court reduces Davis' hourly rate to $150.00 per hour in order to be in line with the hourly rates given junior associates in this district. See Vernon v. Port Authority of New York and New Jersey, 220 F. Supp.2d 223, 231 (S.D.N.Y. 2002) (Leisure, J.) (billable rate of $150.00 per hour awarded to associate); Caspar v. Lew Lieberbaum & Co., Inc., 182 F. Supp.2d 342, 348 (S.D.N.Y. 2002) (Ellis, M.J.) ($120.00 per hour awarded to associate with two to three years of experience); Sowemimo v. D.A.O.R. Security, Inc., No. 97 Civ. 1083, 2000 WL 890229, at *4 (S.D.N.Y. June 20, 2000) (Carter, J.) (awarding $125.00 per hour to first year attorney in small firm); Ward v. New York City Transit Authority, No. 97 Civ. 8550, 1999 WL 446025, at *10 (S.D.N.Y. June 28, 1999) (Baer, J.) (awarding billable rate of $125.00 per hour).

As a general matter, plaintiffs' attorneys' time sheets do not suffer from the vagueness, inconsistencies, or redundancy that have motivated reductions in the fee award by a flat percentage. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998). Plaintiffs, however, acknowledge in their reply memorandum and declaration that two mistakes were made in their original submissions. First, their total billable travel time to and from the courthouse was excessive and they voluntarily and correctly reduced it to 1.2 hours for Raff, 1.8 hours for Becker, and 1.2 hours for Davis.*fn3 Second, plaintiffs also recognize that they mistakenly included time spent on their unsuccessful curative motion, acknowledging that an excess of 2.9 hours for Raff and 1.2 hours for Becker was billed.

Defendants argue that an additional 2.1 hours for Raff and 1.0 hour for Becker should also be excluded as work on the curative motion.*fn4 The billing entries however support plaintiffs' claim that this time was spent on reviewing and acting on a stipulation made prior to the court granting the preliminary injunction, and thus should logically be considered as pertaining to the successful motion for injunctive relief and not the subsequent curative motion. (See Becker Dec. Ex. 2.) The court also finds that the conferences between plaintiffs' attorneys, which defendants cite as duplicative and wasteful, were essential to the development of the strategy for and coordination of a complex class action litigation, and therefore not subject to any reduction by the court.

Defendants do not contest either the hours billed or the rates requested by Assad, Salazar, or Dunbar, and the court finds them to be reasonable. In addition, the court grants plaintiffs' request for fees and costs with regard to the preparation of the fee application.*fn5 See Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979) (attorneys may recover for time reasonably spent in preparing fee applications under fee shifting statutes). With the appropriate adjustments in hours billed and hourly rates, the lodestar calculation would be:

Hours Hourly Rate Total Raff 194.3 $430.00 $83,549.00

Becker 211.6 $400.00 $86,640.00

Davis 100.0 $150.00 $15,000.00

Assad 23.4 $175.00 $4,095.00

Salazar 13.2 $195.00 $2,574.00

Dunbar 8.5 $275.00 $2,337.50

Subtotal $192,195.50 Expenses: $2,568.64 Total $194,764.14

The court awards plaintiffs attorneys' fees and costs in the sum of $194,764.14 for time spent seeking the preliminary and permanent injunctions.


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