United States District Court, S.D. New York
March 8, 2004.
CLAUDE J. IRISH, JR., Plaintiff, -against- CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, SGT. DAVID FURMAN, Defendants
The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
OPINION AND ORDER
Plaintiff Claude Irish ("Irish") seeks attorney's fees and costs
pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure
54(d) for work performed by his counsel, Robert Spergel, in litigating
his claims in these two cases. For the reasons which follow, the Court
awards Irish $54,100.
Irish sued the City of New York, the New York City Police Department,
and Sergeant David Furman, claiming that these defendants violated his
rights under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and the State and City Human Rights laws. He
alleged that he was discriminated against based upon his race, subjected
to a hosfile and abusive working environment, and retaliated against for
having complained about his treatment. Irish's original complaint (98
Civ. 7131) was filed in 1998 with the assistance of a different attorney.
In 2000, Spergel represented Irish in the second case (00 Civ. 9614), and
replaced the attorney in the 1998 case. After completion of substantial
discovery, the parties entered into a stipulation of
settlement as to both cases. Irish signed the agreement on or about
April 19, 2003. See Affirmation of Robert H. Spergel ("Spergel
Aff."), Exh. A. The parties were not able to agree on a reasonable
attorney's fee, and agreed to have the undersigned decide the issue. In
support of Irish's application, he has submitted time records maintained
by Spergel. Spergel Aff., Exh. B.
A. Standard for Awarding Attorney's Fees
A plaintiff may recover attorney's fees under 42 U.S.C. § 1988 if
he is a "prevailing party" in the litigation. Section 1988 provides, in
relevant part, that:
In any action or proceeding to enforce a provision
of section . . . 1983 . . . of this title . . .
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 . . .
The Supreme Court has adopted a common sense approach to attorney's
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 v. Eckerhart, 461 U.S. 424
(1983) (citation omitted). The district court is given broad discretion
in granting a fee award and assessing a reasonable fee under the
circumstances of the case. Id. at 437; Luciano v. Olsten
Corporation, 109 F.3d 111
, 115 (2d Cir. 1997).
The starting point for the determination of a reasonable fee is the
calculation of the lodestar amount, i.e., "the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate."
Hensley, 461 U.S. at 433-34; see Quaratino v.
Tiffany & Co.,
166 F.3d 422, 425 (2d Cir. 1999) (en banc). In
determining the number of hours reasonably expended for purposes of
calculating the lodestar, the district court should exclude excessive,
redundant or otherwise unnecessary hours. Quaratino, 166 F.3d
at 425. The rate requested should 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); Cruz v. Local Union No. 3. 34 F.3d 1148,
1159 (2d Cir. 1994). The party seeking a fee award bears the burden of
producing evidence demonstrating that the requested rates are in line
with those prevailing in the community. See Wilder v,
Bernstein, 975 F. Supp. 276, 281 (S.D.N.Y. 1997). The court may look
to attorney's fees granted in other cases and rely on its own knowledge
of the market to determine a reasonable rate. Blum, 465 U.S.
at 895. A reasonable attorney's fee is "adequate to attract competent
counsel" without resulting in "windfalls to attorneys." Id. at
897; see also Orchano v. Advanced Recovery, Inc.,
107 F.3d 94, 96 (2d Cir. 1997). Generally, the relevant community for
determining a reasonable hourly rate is the district in which the case
was brought. See Luciano, 109 F.3d at 116; In
re Agent Orange Product Liability Litigation, 818 F.2d 226,232 (2d
A party seeking fees bears the burden of supporting its claim of hours
expended by accurate, contemporaneous time records. See
New York State Ass'n for Retarded Children v, Carey,
711 F.2d 1136, 1147-48 (2d Cir. 1983). Time records need not be overly
detailed, but must be sufficiently specific so that the Court may assess
the reasonableness of time expended in relation to the work performed.
See United States Football League v. National Football
League, 887 F.2d 408 (2d Cir. 1989), cert. denied,
493 U.S. 1071 (1990); Dailey v. Societe Generate, 915 F. Supp. 1315,
1328 (S.D.N.Y. 1996), aff'd in relevant
part, 108 F.3d 451 (2d Cir. 1997).
B. The Reasonable Rate in This Case
1. Irish's Position
Irish seeks a total of $66,125 in attorney's fees and costs for
Spergel's work, which is based on a rate of $300 per hour, and which
includes 210.4 hours spent on litigating the merits of the claims, and 10
hours on the instant fee petition. In support of the requested rate, he
cites a number of cases in this district in which counsel were awarded
rates of $300 per hour or more. See, e.g., Baird v.
Bois, Schiller and Flexner, LLP, 219 F. Supp.2d 510, 523 (S.D.N.Y.
2002) (rate of $300 per hour for associate with ten years' experience);
Brenlla v. LaSorsa Buick Pontiac Chevrolet Inc., 2002 WL
1059117, at * 13 (S.D.N.Y. May 28, 2002) (rate of $345 per hour for
partner with twelve years' experience and $270 and $175 for senior and
junior associates, respectively); Gonzalez v. Bratton,
147 F. Supp.2d 180, 211-12 (S.D.N.Y. 2001) (rate range of $250 to $390 for the
most senior attorneys, and $180 to $200 for the most junior attorneys);
Colbert v. Furumuto Realty, Inc., 144 F. Supp.2d 251, 260
(S.D.N.Y. 2001) (rates of $325 and $300 for lead attorneys);
Marisol A. v. Giuliani, 111 F. Supp.2d 381, 386-87 (S.D.N.Y.
2000) (rates of $375 for lead counsel and $300 for counsel with ten
years' experience); Skold v. American Int'l Group, Inc., 1999
WL 405539 at *6-7 (S.D.N.Y. June 18, 1999), aff'd, 205 F.3d 1324
(2d Cir. 2000) (rates of $400 for experienced civil rights litigator and
$275 for lead counsel). In further support of his position, Irish has
submitted an affidavit from Jeffrey L. Goldberg, in which Goldberg
asserts that "the hourly rate that Mr. Spergel is requesting is
reasonable and proper." Spergel Aff. Exh. C.
Irish asserts that Spergel acted as lead counsel, and is comparable to
counsel in the above-cited cases in ability and experience. He maintains
that Spergel is an experienced and successful litigator who has handled a
number of notable cases over the last six years. He further claims that
Spergel, as a former detective in the New York City Police Department,
has special knowledge of the policies, practices, and internal workings
of the department, and that this knowledge provided him with specific
abilities and insights into civil rights litigation against the
department. According to Irish, this expertise and experience made
Spergel a valuable asset, particularly with respect to discovery issues.
Finally, Irish argues that the Court should use "current rates, rather
than historical rates" to account for delay in payment.
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir.
1998); see also Missouri v. Jenkins, 491 U.S. 274,
284 (1989) ("An adjustment for delay of payment is, we hold, an
appropriate factor in the determination of what constitutes a reasonable
attorney's fee under § 1988"); Pennsylvania v. Delaware Valley
Citizens' Council for Clean Air, 483 U.S. 711, 716 (1987) ("[i]n
setting fees for prevailing counsel, the courts have regularly recognized
the delay factor"); Savoie v. Merchants Bank, 166 F.3d 456,
464 (2d Cir. 1999). He maintains that, but for the repeated delays of
defendant, these cases would have been resolved more expeditiously.
According to Irish, defendants changed attorneys on at least three
occasions, causing numerous delays, and requiring extensions of discovery
deadlines. Moreover, he alleges that the new attorneys required
additional time in the discovery process to produce documents, and
attempted to re-litigate issues argued by their predecessor.
2. Defendants' Position
Defendants argue that "the Court should look at the rates prevailing in
the Southern District for attorneys with four to six years of experience
who maintain a sole or small firm practice." Defendants' Memorandum of
Law in Opposition to Plaintiff's Fee Application ("Deft. Opp."), at 3.
They assert that this rate is $225 to $250 per hour. See
Marisol A. v. Giuliani, 111 F. Supp.2d at 386 (attorneys with
seven to nine years of experience, rates of $230 to $250 per hour);
Anderson v. City of New York, 132 F. Supp.2d 239, 243
(S.D.N.Y. 2001) (lead counsel with six years of experience, $250 an hour
after a jury verdict); Vishipco Lines v. Charles Schwab &
Co., 2003 U.S. Dist. LEXIS 6820, at *5, *8 (S.D.N.Y. April 22, 2003)
(attorney with eight years of experience, $225 per hour). They further
assert that, because Spergel had only three years' experience when he
undertook the litigation, and most of the litigation was conducted when
he had less than six years experience, an hourly rate of $200 to $225 per
hour is reasonable for him. They maintain that the size of the firm is
relevant because larger law firms are assumed to carry a larger overhead.
Id.; see Ranioia v, Bratton, 2003 U.S.
Dist. LEXIS 7199, at *20 (S.D.N.Y. Apr. 21, 2003).
Defendants also argue that Spergel spent time on paralegal and clerical
tasks, and that these hours should be compensated at lower rates, which
they assert are $75 and $50, respectively. See Davis v.
New York City Housing Authority, 2002 U.S. Dist. LEXIS 23738, at *
11-12 (S.D.N.Y. Dec. 11, 2002); Entertainment by J & J v.
Friends II, Inc., 2003 U.S. Dist. LEXIS 7229, at * 17-18 (S.D.N.Y.
Apr. 25, 2003); Lawson v. City, 2000 U.S. Dist. LEXIS 15709,
at *6 (S.D.N.Y. Oct. 26, 2000). Similarly, defendants assert that
Spergel's rate should be cut in half for travel time.
See Broome v. Biondi, 17 F. Supp.2d 230, 234
(S.D.N.Y. 1997); Knoeffler v. Town of Mamakating, 126 F. Supp.2d 305,
Because plaintiff has the burden of demonstrating that the requested
rate is reasonable, the description of his skill and experience must
provide an adequate basis for determining the reasonableness of the rate
claimed. In his affirmation in support of the fee application, Spergel
provides no information concerning his normal billing rate. Nor does he
indicate any rate actually awarded him by a court or secured in a
settlement. He merely lists cases in which he claims to have been
counsel, and does not state the disposition of those cases or whether he
was awarded fees in the cases listed. Spergel Aff. ¶ 7. In essence,
he asks the Court to agree with him that $300 per hour is the "market
rate" for someone in this district with similar skill, ability, and
experience. The Court disagrees.
The Court agrees, however, that the it should use "`current rather than
historic hourly rates.'" Gierlinger v. Gleason, 160 F.3d 858,
882 (2d Cir. 1998) (quoting Missouri v. Jenkins, 491 U.S. at
284. Spergel graduated from law school in 1997. Based on the its review
of the relevant cases, and the rates generally awarded in this district
for someone with six to seven years of experience, the Court finds that a
reasonable rate for Spergel's time is $250 per hour. While Spergel claims
a certain level of expertise in police department matters, he has not
carried his burden of demonstrating entitlement to a higher level of
compensation compared to attorneys of similar experience.
On the other hand, the Court sees no reason to reduce the hourly rate
for the size of
Spergel's firm. Defendants argue that the Court should accept the
assumption that larger law firms carry a larger overhead and therefore
should command a higher rate. There is nothing in the legislative history
to support either this assumption or the conclusion to be drawn from the
assumption. Even if larger firms have higher overhead, other factors are
incorporated into an attorney's fee structure. For example, larger firms
may give discounts for the certainty of payment. Smaller firms may have
to charge more because of higher contingency factors. Moreover, the
defendants present no evidence that overhead is the driving force for the
setting of hourly rates in this district.
Finally, the argument that small firms should be compensated at a lower
rate is but a variant of positions already rejected by the Supreme Court.
In Blum v. Stenson, 465 U.S. 886 (1984), the prevailing
plaintiffs had been represented by The Legal Aid Society. The district
court had awarded counsel "prevailing market rates," Stenson v.
Blum, 512 F. Supp. 690, 685 (S.D.N.Y. 1981), and the Second Circuit
had affirmed in an unpublished opinion. Blum v, Stenson,
671 F.2d 493 (2d Cir. 1981). In its petition to the Supreme Court, defendant
asserted that hourly rates for prevailing plaintiffs should be based on
costs rather than market rates:
Petitioner argues that the use of prevailing
market rates to calculate attorneys fees under
§ 1988 leads to exorbitant fee awards and
provides windfalls to civil rights counsel
contrary to the express intent of Congress. To
avoid this result, petitioner urges this Court to
require that all fee awards under § 1988 be
calculated according to the cost of providing
legal services rather than according to the
prevailing market rate. The Solicitor General, as
amicus curiae, urges the Court to adopt a
cost-related standard only for fee awards made to
nonprofit legal aid organizations. He argues that
market rates reflect the level of compensation
necessary to attract profit making
attorneys, but that such rates provide excessive
fees to nonprofit counsel. Because market rates
incorporate operating expenses that may exceed the
expenses of nonprofit legal services
organizations, and include an element of profit
unnecessary to attract nonprofit counsel, the
Solicitor General argues that fee awards based on
market rates "confer an unjustified windfall or
subsidy upon legal services organizations."
465 U.S. at 892-93 (citations and footnote omitted). The Court
found that the legislative history "flatly contradicted" petitioner's
argument, id. at 894, and concluded that "[t]he 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." Id. at 895.
A similar challenge was raised in Missouri v. Jenkins,
Prevailing plaintiffs had sought compensation for the work of paralegals
at prevailing market rates as part of their attorney's fee award.
Defendant argued that these hours should be awarded at cost as part of
the lower overhead experienced by counsel:
Missouri's second contention is that the District
Court erred in compensating the work of law clerks
and paralegals (hereinafter collectively
"paralegals") at the market rates for their
services, rather than at their cost to the
attorney. While Missouri agrees that compensation
for the cost of these personnel should be included
in the fee award, it suggests that an hourly rate
of $ 15 which it argued below corresponded
to their salaries, benefits, and overhead
would be appropriate, rather than the market rates
of $35 to $50. According to Missouri, § 1988
does not authorize billing paralegals' hours at
market rates, and doing so produces a "windfall"
for the attorney.
491 U.S. at 284. After reviewing the statute and the legislative
history, the Court concluded that prevailing plaintiffs were to be paid
in a manner to ensure a "fully compensatory fee." Id. at 286
(citing Hensley v. Eckerhart, 461 U.S. at 435),
finding that applying market rates
did not provide a "windfall" to counsel:
We reject the argument that compensation for
paralegals at rates above "cost" would yield a
"windfall" for the prevailing attorney. Neither
petitioners nor anyone else, to our knowledge, has
ever suggested that the hourly rate applied to the
work of an associate attorney in a law firm
creates a windfall for the firm's partners or is
otherwise improper under § 1988, merely
because it exceeds the cost of the attorney's
services. If the fees are consistent with market
rates and practices, the "windfall" argument has
no more force with regard to paralegals than it
does for associates. And it would hardly accord
with Congress' intent to provide a "fully
compensatory fee" if the prevailing plaintiff's
attorney in a civil rights lawsuit were not
permitted to bill separately for paralegals, while
the defense attorney in the same litigation was
able to take advantage of the prevailing practice
and obtain market rates for such work.
Id. at 287. Thus both Blum v. Stenson and
Missouri v. Jenkins reject a cost-based approach to determining
market rates as contrary to the legislative history of the attorney's
C. A Reasonable Number of Hours in This Case
1. Irish's Position
Irish argues that he has satisfied the standard of specificity required
in this circuit. He notes that Spergel's time records show the date,
hours expended, and the nature of the work done. He maintains that these
records are accurate and detailed, and were contemporaneously maintained
Irish concedes that some of the entries are fairly general, but argues
that they are sufficiently detailed when viewed in the context of other
entries. See Tran v. Tran, 166 F. Supp.2d 793, 800
(S.D.N.Y. 2001); Bonnie & Co, Fashions. Inc v. Bankers Trust
Co., 970 F. Supp. 333, 342 (S.D.N.Y. 1997).
2. The Defendants' Position
Defendants assert that the records submitted in support of the fee
application are "vague," that they are presented in "block billed" form,
and that they "include time spent on non-legal tasks and travel that are
billed at an inflated hourly rate." Deft. Opp., at 2. They maintain, for
example, that approximately 195 hours of time entries are so vague that
no assessment of reasonableness is possible. See Declaration of
Jane R. Goldberg in Opposition to Application for Attorney's Fees and
Expenses ("Goldberg Decl."), Exh. D. Included in this category are
entries such as "letter to court," "rev letter," and "disc/w client."
Defendants also complain that there are entries for research, telephone
calls, and correspondence with no indication of the subject matter, or
purpose, for these activities. Defendants argue that this vagueness
should result in substantial reductions to the hours claimed. See,
e.g., Vishipco Lines. 2003 U.S. Dist. LEXIS 6820, at *6-7
(Ten percent reduction for vague entries); Shannon v. Fireman's
Fund Ins. Co., 156 F. Supp.2d 279, 302 (S.D.N.Y. 2001) (thirty-five
percent reduction for vagueness, redundancy, and other problems with
Defendants also claim that hours listed for unamed investigators,
consultants and experts should be entirely disallowed because there is no
indication of the purpose for which they were retained. See,
e.g., Dailey v. Societe Generate, 915 F. Supp. 1315, 1328
(S.D.N.Y. 1996) (excluding entries for "telephone call," "consultation"
and "review of documents" as insufficiently specific to determine whether
they were duplicative or excessive). See also In re
"Agent Orange Prod. Liab. Litig., 611 F. Supp. 1296, 1348, 1357
(E.D.N.Y. 1985), aff'd, in part, and rev'd, in part,
818 F.2d 226 (2d Cir. 1987);
Ragin, 870 F. Supp. At 515, 520. They maintain that this
problem pervades the application, and these hours must be excluded.
See Goldberg Decl. Exh. D; see also Kirsch v.
Haber, 148 F.3d 149 (2d Cir. 1998).
Finally, defendants assert that use of block billing by Spergel
"impede[s] the Court's ability to conduct a review for reasonableness"
and the hours presented in this manner should be excluded. Deft. Opp., at
10 (citing Soler v. G&U, Inc., 801 F. Supp. 1056, 1061-62
(S.D.N.Y. 1992) ("commingling of activities within one time entry impedes
the court's efforts to evaluate the reasonableness of any of the listed
activities. . .")). They claim that there are 172 hours which fall into
this category. Goldberg Decl., Exh. E.
The Court has reviewed Spergel's time sheets, and on first blush they
appear to be minimalist, if not vague. This, however, is not fatal to the
fee application. "[W]here an attorney's time entries are vague, courts
may attempt to decipher them by reference to the `context in which these
entries occur [to determine] what work was involved.'" Bonnie &
Company Fashions. Inc. v. Bankers Trust Co., 970 F. Supp. 333, 342
(S.D.N.Y. 1997), citing Lenihan v. City of New
York, 640 F. Supp. 822, 826 (S.D.N.Y. 1986). The court may also use
its knowledge of the case to assess the time entries. Algie v. RCA
Global Communications, Inc., 891 F. Supp. 875, 894 (S.D.N.Y. 1994),
aff'd, 60 F.3d 95 (2d Cir. 1995) (citing
Clark v. Frank, 960 F.3d 114671153 (2d Cir. 1992.).
Here, the Court did not have to speculate about many of the items. Many
of the criticisms raised in the Goldberg affidavit concern letters to the
Court. A simple review of these letters provides appropriate context for
the tasks performed. An entry of "letter to
court" is not so mysterious when the Court and opposing counsel
have access to the letter For example, Goldberg lists as "vague" a
"08/30/02"entry of "letter to court research/review" for two hours.
Goldberg Decl., Exh. D. The Court has a copy of this letter. The first
paragraph of that letter states:
Plaintiff writes this time in response to
defendants' letter and affidavits supplied to the
Court on August 26, 2002. Firstly, I have just
received a copy by fax of the affidavits, and as
such am responding.
The Court has reviewed this and other similar entries, and finds
that, in context, the record entries adequately inform it of "the nature
or subject of the work." Tran v. Tran, 166 F. Supp.2d 793,
800 (S.D.N. Y. 2001); see also, Hensley, 461 U.S.
at 437 n. 12 ("[C]counsel should identify the general subject matter of
his time expenditures."). The Court is mindful that there have been
several counsel changes for defendants, but before challenging an entry
as "vague," the current counsel has an obligation to review the
defendants' own files. This was a particularly contentious case during
discovery, and the Court finds no basis to make a general deduction for
Many of defendants' concerns about block billing fail for the same
reason. When one reviews the August 30, 2002 letter, for example, the
time expended is reasonable for the tasks included. No general deduction
Finally, defendants assert that Spergel has requested attorney rates
for clerical or paralegal tasks. A review of Spergel's affidavit shows
that any such hours are de minimus. Moreover, the Court credits
Spergel's representation that the nature of these activities in the
context of this case required an attorney's attention.
Although Spergel mentions a charge of $1500 for an "outstanding
consultant fee" in one of his letters to defendants, no further support
is presented for this charge, and the Court will not speculate about its
nature. See Spergel Aff., Exh. B. No award will be made for this claim.
Finally, Spergel claims $3000 for the fee application, presumably for
ten hours work. Having reviewed the affirmation and accompanying
memorandum, the Court finds that six hours would have been adequate to
produce these documents, as they reveal minimal research and preparation.
The Court awards Irish compensation for 210.4 hours of Spergel's time
on the merits and six additional hours on the fee application. At $250
per hour, this results in a total fee award of $54,100.