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United States District Court, Eastern District of New York

August 22, 2003


The opinion of the court was delivered by: Charles Sifton, Senior District Judge


Plaintiff Nakijah Matthews brings this action against defendants City of New York and various law enforcement officials seeking relief under 42 U.S.C. § 1983 for alleged violations of her civil rights, in particular an allegedly false arrest and illegal strip search. Pursuant to plaintiff's acceptance of an offer of judgment by defendants under Rule 68 of the Federal Rules of Civil procedure, judgment was entered in plaintiff's favor in the amount of $7,501, with costs and reasonable attorneys fees, Plaintiff now moves for an award of attorneys fees in the amount of $52,037.20. For the reasons set forth below, plaintiff is awarded attorneys fees in the amount of $20,473.73.


The following facts are taken from the submissions of the parties, and are essentially undisputed. [ Page 2]

This is one of several related actions being prosecuted by the law firm of Cardinale Hueston & Marinelli ("CHM") on behalf of plaintiffs alleging violations of their civil rights arising from arrests and detentions in the Borough of Brooklyn, in particular, the alleged practice of performing strip searches of arrestees at the Brooklyn Central Booking facility. There are currently eight other such actions on this Court's docket, involving 30 plaintiffs (for a total of nine actions and 31 plaintiffs),*fn1 all of which have been consolidated for pretrial purposes (collectively, the "Brooklyn strip-search cases"). The cases (other than the instant case) are: Habrout v. City of New York, 02 CV 1039; Joseph v. City of New York, 01 CV 1165; Hero v. City of New York, 01 CV 2511; Spinner v. City of New York, 01 CV 2715; Espeland v. City of New York, 01 CV 5429; Philizaire v. City of New York, 01 CV 2738; Knopke v. City of New York, 01 CV 8264; and Micciulli v. City of New York, 02 CV 2899. Spinner, [ Page 3]

Micciulli, and Knopke are putative class actions; a motion to consolidate these three cases with Habrout under the Spinner caption and a motion for class certification and a preliminary injunction in the resulting consolidated action are currently pending before this Court.

Defendants moved to disqualify CHM as counsel in these actions on grounds that the prior employment of Messrs. Cardinale and Hueston as Assistant Corporation Counsels in the Special Federal Litigation Division of the New York City Law Department created a conflict of interest. Magistrate Judge Pollak denied the motion by an order dated May 20, 2002, and reaffirmed her ruling on reconsideration by order dated January 28, 2003.

Plaintiff in this action accepted defendants' offer of judgment in the amount of $7,501 under Rule 68 of the Federal Rules of Civil Procedure. Rule 68 states in relevant part:

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment.
Plaintiff filed copies of the offer of judgment and the notice of acceptance, along with an affidavit of service and a proposed form of judgment, as attachments to a request for the clerk to enter judgment pursuant to this Rttle. However, the clerk's office did not enter judgment and instead docketed the [ Page 4]

request for entry of judgment and sent it to my chambers. I signed the proposed judgment (which also included a signature line for the Clerk of the Court) on May 19, 2003, and on May 27, 2003, I issued an order directing the clerk to enter the judgment. However, the judgment had already been docketed on May 21, 2003. The judgment ordered plaintiff to submit her application for attorneys fees within thirty days from entry of judgment. Plaintiff filed her motion for attorneys fees on Monday, June 23, 2003. She claims $52,037.20 in attorneys fees.


The awarding of attorneys fees in civil rights actions is governed by 42 U.S.C. § 1988(b), which states in relevant part:

In any action or proceeding to enforce a provision of [the federal civil rights laws], 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.
In this Circuit, there is "a presumption that successful civil rights litigants should recover an attorney's fee unless special circumstances would render such an award unjust." Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1982). To qualify as a prevailing party eligible for an award of attorneys fees, the plaintiff must obtain at least some relief on the merits of his claim. Farrar v. Hobby, 506 U.S. 103, 111 (1992).

"In determining reasonable attorney's fees, the district court must calculate a `lodestar' figure based upon the number of hours reasonably expended by counsel on the litigation [ Page 5]

multiplied by a reasonable hourly rate." Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997). "The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). A court may exclude those hours it finds to be "excessive, redundant, or otherwise unnecessary," Id. at 434. In reducing the number of hours claimed, a court may, in its discretion, apply an across-the-board percentage reduction "as a practical means of trimming fat from a fee application." Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998). The hourly rate applied must be "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984). The relevant "community" from which this rate should be derived is "the district in which the court sits." Polk v. New York State Dep't of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983).

Plaintiff has submitted receipts and attorney time sheets for three categories of fees and expenses: (1) amounts attributable to work on plaintiff's case alone, (2) amounts attributable to discovery pertaining to the municipal liability claim under Monell v. Dep't of Social Services, 436, U.S. 658 (1978), which is common to all the Brooklyn strip-search cases,; and (3) amounts attributable to litigation of the defendants' motion to disqualify CHM as counsel in all the Brooklyn strip-search cases. Plaintiff calculates the fees incurred based on an [ Page 6]

attorney rate of $300/hour, a travel rate of $150/hour, and a paralegal rate of $50/hour. In the first of the above-mentioned categories, she claims 3674 minutes (61.233 hours) of attorney time, 100 minutes (1.667 hours) of travel time, and 515 minutes (8.583 hours) of paralegal time, plus the $150 filing fee and process server costs of $30, for a total of $19,229.16. In the second category, plaintiff claims 9,275 minutes (154.58 hours) of attorney time, 371 minutes (6.183 hours) of travel time, and 745 minutes (12.42 hours) of paralegal time, plus $3,025.70 for deposition transcripts. In the third category, she claims 28,767 minutes (479.45 hours) of attorney time, 432 minutes (7.2 hours) of travel time, and 1,181 minutes (19.683 hours) of paralegal time. She proposes to divide the totals for the second and third categories by six (reflecting the six Brooklyn strip-search cases remaining after Spinner, Micciulli, Knopke, and Habrout are consolidated) to arrive at a pro rata figure of $8,491.52 in the second category and $24,316.52 in the third category.

Defendants raise five objections to plaintiff's application for attorneys fees. First, they submit that the motion is untimely as it was filed outside the thirty-day period provided for in the judgment and should be denied on this basis. Second, they argue that plaintiff should not be awarded attorneys fees connected to the litigation of the motion to disqualify CHM. Third, they argue that the hourly rates used by plaintiff to calculate the amount of fees due are excessive. Fourth, they argue that plaintiff's six-way division of expenses and fees [ Page 7]

common to all the CHM cases in this District is inappropriate and premature. Fifth and finally, they assert that some of the line entries in plaintiff's counsel's time sheets are excessive, duplicative, or otherwise unreasonable. In response to defendants' final argument, plaintiff has offered to stipulate to a 5% across-the-board reduction in her proposed lodestar figure; otherwise, she maintains her entitlement to fees as set forth in her motion.

Timeliness of Motion

Defendants assert that plaintiff's motion, filed 33 days after the judgment was docketed, is untimely under the terms of that judgment. After defendants raised this issue in their opposition, plaintiff filed a motion under Rule 6(b) of the Federal Rules of Civil Procedure for enlargement of time in which to file her motion for attorneys fees and costs so as to allow the latter motion to be deemed timely. Because plaintiff did not request an extension of time to file her motion until after the expiration of the thirty day period, she has the burden of showing that her "failure to act was the result of excusable neglect." Fed.R.Civ.P. 6(b)(2); see Tenenbaum v. Williams, 907 F. Supp. 606, 611 (E.D.N.Y. 1995). "The determination whether neglect is `excusable' in a particular case rests with the sound discretion of the district court." Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984) (citation omitted).

Plaintiff points out that, after the judgment was docketed but before the time for filing the present motion under [ Page 8]

that judgment would have elapsed, this Court directed the clerk to enter the judgment attached to plaintiff's Rule 68 request. She argues alternatively that (1) the May 27 order "superseded" the May 21 judgment, or (2) plaintiff reasonably believed that her motion was actually early since no judgment had been entered subsequent to the May 27 order. As for the first argument, the May 21 judgment is the judgment that the clerk was ordered to enter; the superfluous May 27 order is merely the result of miscommunication between the clerk's office and the Court. This miscommunication (and some apparent confusion over the proper handling of Rule 68 requests to enter judgment) may have led to ambiguity as to the actual deadline for plaintiff to file her motion for attorneys fees, and this ambiguity cannot fairly be held against plaintiff. Furthermore, defendants do not (and cannot) claim prejudice from the three-day delay in filing the motion. Where ambiguity in an order of a court led to a party's failure to comply with a deadline and the opposing party has not suffered any prejudice from the delay, failure to comply with the deadline is excusable under Rule 6(b)(2). See Spear, Leeds & Kellogg v. Public Service Co. of New Hampshire, 700 F. Supp. 791, 794 (S.D.N.Y. 1988). Accordingly, the thirty-day period which began running upon entry of judgment on May 21, 2003 is extended nunc pro tune to June 23, 2003, and plaintiff's motion is deemed timely. [ Page 9]

Disqualification & Pro Rata Apportionment of Fees

Defendants argue that: CHM's litigation of the disqualification motion is not compensable because it was not "useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached before settlement." Webb v. County Bd. of Educ. of Dyer County, 471 U.S. 234, 243 (1985). They cite numerous cases where certain attorney tasks were not compensated with a fee award, but none of these cases deal with a disqualification motion, The only case the Court has found discussing the issue held that compensation for efforts in defending a disqualification motion was proper. Wisdom v. Philadelphia Housing Authority, 2003 WL 21545123, at *5 (E.D. Pa. July 7, 2003) (Kelly, J.). In Wisdom, the municipal defendant moved to disqualify plaintiffs' counsel on grounds that his former employment at the defendant agency gave him access to confidential information that was relevant to his clients' claims — an argument identical to that advanced by defendants in this case. Id. The Wisdom court denied the motion to disqualify and awarded attorneys fees for defense against the motion. Id. I agree that such efforts should be compensated with an award of attorneys fees, particularly in a case such as this one in which plaintiff s claim is not large enough to attract many qualified attorneys on a contingent basis and her chosen counsel had expertise in the type of claim she wished to bring. Had CHM withdrawn or had the disqualification motion been successful, it is unlikely that plaintiff could have found another attorney to [ Page 10]

take her case and advance it to the settlement she reached. Accordingly, I find that the efforts of plaintiff's counsel in defending against the disqualification motion are compensable by an award of attorneys fees.*fn2

As for the amount of that award, Wisdom is again instructive. Like plaintiff's counsel in this case, Wisdom's attorney appeared to be taking advantage of his experience in the public sector by bringing private actions against his former employer. The disqualification motion in Wisdom implicated four separate actions with four separate clients (including Wisdom). The court found that the costs incurred in defending against the motion should be divided pro rata among all four clients, resulting in a one-fourth award to Wisdom. This Court finds such a division equitable. Plaintiff's proposed division, based on the number of actions rather than the number of clients, is counterintuitive, since the number of actions has been manipulated by counsel since their filing and bears no relation to the weight of the claims. Indeed, the promise of a large damage award in Spinner and CHM's other multiple-plaintiff cases would appear to be necessary to justify the expenses the firm has incurred in litigating the disqualification motion; the fact that Ms. Matthews' case involved the same issues merely suggests that [ Page 11]

her action is being subsidized by her attorneys other clients. Accordingly, I find that pro rata apportionment based on the number of plaintiffs in the Brooklyn strip-search cases is appropriate. Plaintiff will thus be awarded a 1/31 share of the fees and expenses attributable to her attorneys defense of the disqualification motion.*fn3 Furthermore, this reasoning applies with equal force to the time expended in discovery related to Monell issues raised by the Brooklyn strip-search cases; a 1/31 share of those fees and expenses will also be awarded.

Hourly Rates

Defendant argues that the $300 hourly rate claimed by plaintiff is not in line with the prevalent market rate for attorneys in this District.*fn4 "Fee awards in other recent Eastern District of New York cases have ranged from $200 to $250 for partners and from $100 for junior associates to $200 for senior associates." Fink v. City of New York, 154 F. Supp.2d 403, 407 (E.D.N.Y. 2001). This Court used these figures as a basis for a fee award for non-trial attorney work less than a year ago. See McGrath v. Toys "r" Us, 2002 U.S. Dist. LEXIS 22610 at *13-14 (E.D.N.Y. Oct. 8, 2002). In addition to market [ Page 12]

rates generally, the Court must consider an attorney's skill, experience, and reputation in determining a reasonable hourly rate. Id. Mr. Cardinale has been practicing for approximately 12 years and has significant experience in civil rights cases and civil and criminal trial work. Mr. Hueston has been practicing for approximately nine years and also has significant civil rights and trial experience. Mr. Marinelli has been practicing for nearly 11 years with some experience in federal civil rights actions and significant criminal experience. Based on these facts and the prevailing rates for attorneys in this District, I find counsel's claimed rate of $300/hour excessive. Rather, I find a rate of $250/hour more appropriate.

Duplicative and Excessive Charges

Defendants next argue that plaintiff's counsel's time sheets contain numerous duplicative or excessive charges totaling over 15 hours, or 9% of the total claimed (based on plaintiff's one-sixth apportionment of common tasks). As examples, defendant points out line items such as (1) legal research for the complaint in which the issues presented were presumably already researched for complaints in other Brooklyn strip-search cases previously filed; (2) periods of ½ hour to over an hour reviewing and drafting brief letters; (3) research on Monell issues claimed with respect to the Matthews' case alone (allegedly redundant with the work done for all the Brooklyn strip-search cases); (4) identical entries for Messrs. Hueston and Cardinale that are allegedly duplicative; and (5) allegations that the time spent on [ Page 13]

certain tasks is excessive for attorneys of plaintiff's counsels' experience. Rather than address each of these line items individually, I will reduce the total number of attorney hours claimed by 5%, as provided for in Kirsch, 148 F.3d at 173.

Calculation of Award

Based on the foregoing discussion, plaintiff's award is calculated as follows:

Matthews — Specific Charges

Plaintiff claims 61.233 attorney hours. After a 5% reduction, the total number of attorney hours is 58.172. At an hourly rate of $250, this yields a fee of $14,542.92. Adding travel fees of $250, paralegal fees of $429.16, and costs of $180, plaintiff will be awarded $15,402.08.

Monell — Related Work

Plaintiff claims 154.58 attorney hours. After a 5% reduction, the total number of attorney hours is 146.85. At an hourly rate of $250, this yields a fee of $36,713.54. Adding travel fees of $927.50, paralegal fees of $621, and costs of $3,025.70, the total fees and costs attributable to this category is $41,287.74. Based on a pro rata share of 1/31, plaintiff will be awarded $1,331.86.

Disqualification Motion

Plaintiff claims 479.45 attorney hours. After a 5% reduction, the total number of attorney hours is 455.48. At an hourly rat(c) of $250, this yields a fee of $113,869.38. Adding travel fees of $1,080 and paralegal fees of $984.16, the total of [ Page 14]

fees and costs attributable to this category is $115,933.54. Based on a pro rata share of 1/31, plaintiff will be awarded $3,739.79.


For the foregoing reasons, plaintiff is awarded fees and costs in the amount of $20,473.73.

The Clerk is directed to furnish a filed copy of the within to all parties and to the magistrate judge.


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