The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
In this case Chantal Murray ("Chantal"), a minor, brought a
Section 1983 Equal Protection action by and through her parents
David and Djeanine Murray (collectively the "Plaintiffs") against
the Valley Stream School District Board of Trustees and the
Commissioner of the New York State Department of Education, among
others, (collectively the "Defendants"). The Plaintiffs commenced
the action and successfully obtained a temporary restraining
order ("TRO"). Less than two months after issuance of the TRO the
parties reached a settlement of the case. The Plaintiffs now seek
attorney's fees for 1320.10 hours of work at $325 an hour plus
$544.15 in costs for a total of $429,576.65 pursuant to
42 U.S.C. § 1988(b).
On March 19, 2003, Chantal, a student at Valley Stream Memorial
Junior High School, attempted to try-out for the school's
baseball team. The school required Chantal to undergo a physical
examination to determine her physical strength and fitness to
participate on the baseball team. Male students who signed up for
the baseball team were not required to undergo any physical
examination for physical strength or fitness. On March 26, 2003,
Chantal performed the female-qualification test and was informed
that she failed because she did not complete a sufficient number
of flexed arm hangs. The Plaintiffs appealed to the
Superintendent of the School District and the Valley Stream
Central High School District Review Panel. On April 3, 2003, the
Plaintiffs were notified that Chantal's request had been denied.
On May 2, 2003, the Plaintiffs commenced an appeal to the
Commissioner of Education but did not receive a disposition.
On March 5, 2004, the Plaintiffs commenced this action by
filing a complaint and moving for an order to show cause and a
temporary restraining order against the Defendants. On March 8,
2004, after hearing argument on the order to show cause, the
Court granted the Plaintiffs request for a temporary restraining
order. The order permitted Chantal to be a member of the baseball
team without having to pass a physical fitness test. On May 20,
2004, the parties reached a settlement that resolved the action
by allowing Chantal to participate on the baseball team during
her tenure in the school district. Pursuant to the terms of the
settlement agreement, the Court retained jurisdiction for the
purpose of enforcing the settlement, if necessary, and to
determine the award of attorney's fees.
In response to the "American Rule," in which each party in a
lawsuit ordinarily bears his own attorneys fees unless there is a
contractual provision or an express statutory authorization,
Congress enacted the Civil Rights Attorneys Fees Awards Act of
1976, 42 U.S.C. § 1988 ("Section 1988"). Pursuant to
42 U.S.C. § 1988, a court has discretion to award a prevailing plaintiff
attorney's fees and costs in an action under 42 U.S.C. § 1983. A
plaintiff who is successful on at least one or more of his
Section 1983 claims is entitled to such award. Successful
resolution of a claim by way of a settlement agreement is
sufficient to invoke prevailing party status if the agreement
provides that the court shall retain jurisdiction and materially
changes the position of the parties. See Roberson v.
Giuliani, 346 F.3d 75, 84 (2d Cir. 2003).
The Supreme Court set forth the rules for determining a
prevailing party's fee in the seminal case of Hensley v.
Eckerhart, 461 U.S. 424
, 103 S. Ct. 1933, 76 L. Ed 2d 40 (1983).
In Hensley, the Court stated that "the amount of the fee . . .
must be determined on the facts of each case." Id. at 429. Two
important factors in the determination of a "reasonable" fee are
the number of hours reasonably expended multiplied by a
"reasonable" hourly rate. In this regard, in Hensley the Court
The most useful starting point for determining the
amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a
reasonable hourly rate. This calculation provides an
objective basis on which to make an initial estimate
of the value of a lawyer's services. The party
seeking an award of fees should submit evidence
supporting the hours worked and rates claimed. Where
the documentation of hours is inadequate, the
district court may reduce the award accordingly.
Id. at 433.
Further, the Court stated that the district court should
exclude from this initial fee calculation the hours that were not
"reasonably expended," as follows:
The district court also should exclude from this
initial fee calculation hours that were not
"reasonably expended." S. Rep. No. 94-1011, p. 6
(1976). Cases may be overstaffed, and the skill and
experience of lawyers vary widely. Counsel for the
prevailing party should make a good-faith effort to
exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a
lawyer in private practice ethically is obligated to
exclude such hours from his fee submission." In the
private sector, `billing judgment' is an important
component in fee setting. It is no less important
here. Hours that are not properly billed to one's
client also are not properly billed to one's
adversary pursuant to statutory authority."
Copeland v. Marshall, 641 F.2d 880, 891 (1980).
Id. at 434 (additional emphasis supplied).
However, the computation of reasonable hours multiplied by a
reasonable rate "does not end the inquiry." Id. There are other
factors for the district court to consider. An important factor
is the "results obtained." Id. This factor is also discussed in
Hensley as follows:
This factor is particularly crucial where a plaintiff
is deemed" prevailing" even though he succeeded on
only some of his claims for relief. In this situation
two questions must be addressed. First, did the
plaintiff fail to prevail on claims that were
unrelated to the claims on which he succeeded?
Second, did the plaintiff achieve a level of success
that makes the hours reasonably expended a
satisfactory basis for making a fee award?
Id. at 434.
This partial success factor was further explained in Hensley
and refined in subsequent Second Circuit cases. In Hensley it
In some cases, a plaintiff may present in one lawsuit
distinctly different claims for relief that are based
on different facts and legal theories. In such a
suit, even where the claims are brought against the
same defendants often an institution and its
officers, as in this case counsel's work on one
claim will be unrelated to his work on another claim.
Accordingly, work on an unsuccessful claim cannot be
deemed to have been "expended in pursuit of the
ultimate result achieved." Davis v. County of Los
Angeles, 8 E.P.D. at 5049. The congressional intent
to limit awards to prevailing parties requires that
these unrelated claims be treated as if they had been
raised in separate lawsuits, and therefore no fee may
be awarded for services on the unsuccessful claim.
Id. at 434-35.
In its determination of the compensation of the prevailing
party attorney in regard to a partial success, the district court
"may attempt to identify specific hours that should be eliminated
or it may simply reduce the award to account for the limited
success." Id. at 436-37.
Finally, the Supreme Court in Hensley stated that "the fee
applicant bears the burden of establishing entitlement to an
award and documenting the appropriate hours expended and hourly
rates. The applicant should exercise `billing judgment' with
respect to the hours worked . . . and should maintain billing
time records in a manner that will enable a reviewing court to
identify distinct claims." Id. at 437.
In summary the twelve factors that the Court must address in
its determination of the proper prevailing attorney's fee are as
(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.
B. Plaintiffs' Fee Application
In his application for attorney's fees, Jason Parpas submitted
a summary billing statement detailing the work performed for the
Plaintiffs dating back to March 27, 2003, totaling 1,320.10
hours. Mr. Parpas now requests attorney's fees for 1320.10 hours
at $325 an hour for a total of $429,032.50. Mr. Parpas did not
submit any contemporaneous records of such work. Mr. Parpas
states that the Plaintiffs entered into a formal written contract
on April 1, 2003, wherein it was agreed that counsel would be
compensated at a rate of $350 an hour. However, Mr. Parpas did
not submit a copy of this agreement with his application. Mr.
Parpas has not submitted a curriculum vitae or resume, but
affirms that he is a solo practitioner; a Certified Public
Accountant; that he graduated in the top 18% of his class from
the Hofstra University School of Law; that he has been practicing
law for five years; and that he has worked on civil litigation in
both federal and state ...