United States District Court, E.D. New York
February 1, 2005.
CHANTAL MURRAY, by and through her parents and natural guardians, and in their individual capacities, DAVID B. MURRAY, and DJEANINE MURRAY, Plaintiff,
THE COMMISSIONER OF THE STATE OF NEW YORK DEPARTMENT OF EDUCATION RICHARD P. MILLS, THE NEW YORK STATE BOARD OF REGENTS, NEW YORK STATE PUBLIC HIGH SCHOOL ATHLETIC ASSOCIATION, VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT BOARD OF TRUSTEES, VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT MEMORIAL JUNIOR HIGH SCHOOL PRINCIPAL AND STAFF, and VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT SUPERINTENDENT, Defendants.
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.
A. The Standards
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 courts for plaintiffs and defendants. He
seeks to be awarded the prevailing rate of $250 per hour,
upwardly adjusted by an additional 30%, or $75, to reflect the
increase in the consumer price index and inflation in the Eastern
District since 1994.
In this case, the Defendants concede that Chantal is a
prevailing party in this lawsuit by virtue of having received a
TRO and injunctive relief, incorporated into a "so-ordered"
stipulation of settlement that confirms that Court's continuing
jurisdiction over this action. However, the Defendants opine that
the application is grossly egregious and unreasonable. Defense
counsel for the State concludes that Mr. Parpas' fee application
is riddled with instances of questionable and duplicative,
triplicate, and even quadruple billing, for performing the same
or virtually the same tasks as were done in the course of
representing the Plaintiffs during the administrative appeal and
the federal litigation. Defense counsel notes that the entries in
the 27 page billing statement merely demonstrate his intimate
familiarity with Roget's Thesaurus, as the records are replete
with every conceivable synonym for the phrase "research case law"
and "review and revise." Moreover, defense counsel further notes
that the entries bear no relation to reality and demonstrate a
fundamental lack of understanding about what constitutes
effective use of an attorney's time and efforts. See State
Dft's Memorandum in Opposition at p. 7.
Initially, the Court finds that the plaintiff is a prevailing
party and is entitled to an award of his reasonable attorneys
fees under 42 U.S.C. § 1988. Further, the Court notes that this
was a fairly routine order to show cause. Whatever complex issues
may have been present, if any, were quickly resolved once the
settlement was reached.
C. Hourly Rate
In making the initial lodestar calculation, the rate to be used
must be the rate "prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience,
and reputation." Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d
Cir. 1997) (citing Blum v. Stenson, 465 U.S. 886, 896 n. 11,
104 S.Ct. 1541, 1547 n. 11 (1984)). In 1998, the Second Circuit
held that rates of $200 for partners, $135 for associates, and
$50 for paralegals were reasonable rates for legal services in
the Eastern District. Savino v. Computer Credit, Inc.,
164 F.3d 81, 87 (2d. Cir. 1998); see also Luciano, 109 F.3d at 111-12
(collecting cases); Association for Retarded Citizens v.
Thorne, 68 F.3d 547, 554 (2d Cir. 1995); Cruz v. Local Union
No. 3, Int'l. Brotherhood of Electrical Workers, 34 F.3d 1148,
1160 (2d Cir. 1994); Irish v. City of New York, 2004 WL 444,
544 (S.D.N.Y. 2004 ($250 per hour)). The Court will apply the
rates prevailing in the Eastern District community for similar
services by lawyers of reasonably comparable skill, experience,
and reputation in making the initial lodestar calculation. Polk
v. New York State Dep't of Correctional Services, 722 F.2d 23,
25 (2d Cir. 1983) ("normally a district court awarding attorney's
fees under Section 1983, will consider the prevailing rates in
the district in which the court sits").
Following the rule set forth in Savino, some Eastern District
Courts have applied this standard. See Fink v. City of New
York, 154 F. Supp. 2d 405, 407 (E.D.N.Y. 2001) (partners $200.00
to $250.00 and associates $100.00 to $200.00); Schwartz v.
Chan, 142 F. Supp. 2d 325 (E.D.N.Y. 2001) ($175.00 per hour for
a sole partner); Fernandez v. North Shore Orthopedic Surgery &
Sports Medicine, 2000 WL 13063, at *8 (E.D.N.Y. 2000) ($225.00
per hour for partners and $100.00 per hour for associates);
Cush-Crawford v. Adchem Corp., 94 F. Supp. 2d 294, 303
(E.D.N.Y. 2000) aff'd 271 F.3d 352 (2d Cir. 2001) ($200.00 for
partners and $135.00 for associates); Greenridge v. Mundo
Shipping Corp., 60 F. Supp. 2d 10, 13 (E.D.N.Y. 1999) ($225.00
per hour for a senior partner and $150.00 per hour for her
The size of the firm representing a plaintiff seeking
attorney's fees may also be considered a factor in determining a
reasonable attorney's fee, primarily due to lower overhead costs.
See, e.g., Chambless v. Masters, Mates & Pilots Pension Plan,
885 F.2d 1053, 1058-59 (2d Cir. 1989) (noting that the size of an
attorney's firm is relevant in determining the relevant
community's "prevailing market rates" and that "smaller firms may
be subject to their own prevailing market rate"); Reiter v.
Metropolitan Transp. Authority of New York, 2004 WL 2072369, at
*7 (S.D.N.Y.). Recent cases in the Eastern District of New York
have held that $175.00 to $200.00 per hour is an appropriate rate
for a solo practitioner. See, e.g., Louima v. City of New
York 2004 WL 2359943, at *89 (E.D.N.Y. 2004); Schwartz v.
Chan, 142 F. Supp. 2d 325, 332 (E.D.N.Y. 2001) (citing Savino
v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998)
(finding hourly rate of $175.00 reasonable)); Walia v. Vivek
Purmasir & Assocs., Inc., 160 F. Supp. 2d 380, 382 (E.D.N.Y.
2000) (finding hourly rate of $200.00 reasonable).
Mr. Parpas was the only attorney who handled this case. But it
is unclear from the Plaintiffs' submissions whether Mr. Parpas
has an established practice of law. Mr. Parpas has not submitted
a resume but affirms that he has over 5 years of experience as an
attorney working on civil litigation in both federal and state
courts for both plaintiffs and defendants. However, upon
investigation the Court has some concern regarding these claims.
Mr. Parpas was admitted to practice as an attorney in New York in
2000 and brought this action four years later in 2004. Mr. Parpas
claims to have worked on civil litigation in federal court, but
apparently, the instant action is the only case in the Eastern
District of New York in which Mr. Parpas has entered an
appearance for a party. In addition, records reveal that Mr.
Parpas was only admitted to the Southern District of New York on
January 27, 2004.
Mr. Parpas' lack of experience also is evident in his hourly
submission. Incredibly, he claims that he spent well in excess of
1000 hours on an order to show cause and temporary restraining
order. An order to show cause and temporary restraining order by
definition are time relevant proceedings and seek immediate
relief. It follows that the Court should be concerned and wary
with regard to an attorney that spends such an excessive amount
of time preparing a routine request for a temporary restraining
order and a preliminary injunction. In addition, Mr. Parpas
readily admits in his request that some of his time was used to
perform administrative tasks that would normally be performed by
a paralegal or support staff. The Court also notes that, although
counsel claims to have spent 150 hours on his application for
attorney's fees alone which time he expects to be compensated
for his application contains typographical mistakes, errors in
grammar and punctuation, and is unnecessarily lengthy. For
example, a summary of his point headings in the table of contents
for his memorandum of law is three pages long.
In similar cases, courts have awarded associates with very
little experience at rates of $100 to $135 per hour. See
Rotella v. Bd. of Educ. of the City of New York, No. 01-0434,
2002 U.S. Dist. LEXIS 507 (E.D.N.Y. 2002); see also Hightower
v. Nassau County Sheriff's Dept., 325 F. Supp. 2d 199, 214,
vacated in part on other grounds, 343 F. Supp. 2d 191 (E.D.N.Y.
2004); Amato v. City of Saratoga Springs, 991 F.Supp. 62, 67
(N.D.N.Y. 1998). Accordingly, after considering all the factors
in Hensley, the facts and circumstances of this case and the
experience of Jason Parpas, the Court fixes his hourly rate of
compensation at $135.00. This amount reflects his limited federal
litigation experience and the fact that some of the work could
have been performed by a paralegal or administrative support
D. Were a Reasonable Number of Hours Billed?
Having determined the reasonable hourly rate for Mr. Parpas,
the Court now turns to the question of how many hours were
reasonably expended by him. The standard in this regard was
stated in Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.
The district court must thus examine the hours
expended by counsel and the value of the work product
of the particular expenditures to the client's case.
Efforts put into research, briefing and the
preparation of a case can expand to fill the time
available, and some judgment must be made in the
awarding of fees as to diminishing returns from such
further efforts. . . . In making this examination,
the district court does not play the role of an
uninformed arbiter but may look to its own
familiarity with the case and its experience
generally as well as to the evidentiary submissions
and arguments of the parties. DiFilippo v. Morizio,
759 F.2d 231, 235-36 (2d Cir. 1985); see, e.g.
Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir.
1997); Clarke v. Frank, 960 F.2d 1146, 1153 (2d
Cir. 1992). If the court determines that certain
claimed hours are "excessive, redundant, or otherwise
unnecessary," Hensley v. Eckerhart,
461 U.S. at 434, 103 S. Ct. 1933, the court should exclude those
hours in its calculation of the lodestar.
Gierlinger, 160 F.3d at 876.
For an accurate determination of the hours reasonably expended
it is necessary for the Court to examine contemporaneous billing
records, time sheets or other documented, authentic, and reliable
time records. See Hensley at 434. The Supreme Court has
instructed that "[h]ours that are not properly billed to one's
client also are not billed to one's adversary." Id. The Court
finds this instruction most helpful in this case.
The time records submitted by Mr. Parpas as annexed to his
affidavit appear to be a review or compilation of the work he
did. They do not appear to be contemporaneous records. While the
compilations submitted by Mr. Parpas are certainly permitted in
this type of application, it appears, with reasonable certainty,
that the time records submitted by him were compiled for the
purposes of this application.
Defense counsel for the State contends that the "sheer number
of hours claimed by Plaintiffs' counsel are simply incredible."
The Court finds that the records submitted by Mr. Parpas are not
only incredible, but grossly excessive, redundant, and
unnecessary. The Plaintiffs' billing statement may be divided
into four parts: (1) the initial client consultations; (2) the
preparation for and attendance at administrative proceedings; (3)
the preparation for and attendance at federal court proceedings;
and (4) the attorney's fee application. Putting aside the issue
of whether the Plaintiffs are entitled to attorney's fees for
work not related to the order to show cause, such as the
administrative proceedings, each part of the billing statement is
riddled with instances of unreasonable or unwarranted entries.
1. Initial Client Consultation
The hours billed by Mr. Parpas for client consultation are
related to the Plaintiffs' claim but appear unreasonably
excessive. For example, after his initial consultation on March
27, 2003, Mr. Parpas billed 5.20 hours on March 31, 2003 to read
the entire New York State Public High School Athletic Association
Handbook. On April 2, 2003, Mr. Parpas billed 8 hours researching
the "school system structure" and determining the "hierarchy of
school system." On April 7, 2003, Mr. Parpas billed an additional
8 hours while he "[a]nalyzed, recapitulated, summarized,
digested, and recorded New York State Public High School Athletic
Association Handbook regarding junior high school students
applications to and for interscholastic athletic teams, baseball
game guidelines, softball game guidelines, season length, mixed
competition rules, and overall purpose and role of
In sum, Mr. Parpas spent 6.5 hours consulting with the
Plaintiffs, 4 hours on the telephone with opposing counsel, and
52.9 hours researching the various "subject matter" before
counsel commenced work on the administrative appeal. The Court
finds that the 52 hours billed for research were unreasonable and
excessive, and will only award 10 hours for research, 6.5 hours
for consultations with the Plaintiffs, and .4 hours for time
spent on the phone, for a total of 16.9 hours.
2. Administrative Proceedings
The Plaintiffs seek attorney's fees for work performed on the
administrative appeal to the Commissioner of Education from April
24, 2003 until January 29, 2004. It is well-settled that
generally, attorney's fees are not available for work performed
in administrative proceedings. Webb v. Board of Educ. of Dyer
County, Tenn., 471 U.S. 234, 241, 105 S.Ct. 1923, 1927-28
(1985); Cullen v. Fliegner, 18 F.3d 96, 105 (2d Cir. 1994);
Vecchia v. Town of North Hempstead, 927 F. Supp. 579, 581
(E.D.N.Y. 1996). "Congress only authorized the district courts to
allow the prevailing party a reasonable attorney's fee in an
"action or proceeding to enforce [§ 1983]." Webb,
471 U.S. at 241.
However, attorney's fees may also be awarded for work done in a
prior administrative proceeding which "was both useful and of a
type ordinarily necessary to advance" the subsequent civil rights
litigation. N. Carolina Dept. of Transp. v. Crest St. Community
Council, Inc., 479 U.S. 6, 15, 107 S.Ct. 336, 341,
93 L. Ed.2d 188 (1986) (quotations omitted). In this case, the Plaintiffs
Section 1983 claim did not require the Plaintiffs to obtain
relief or exhaust their remedies through administrative
proceedings. As the Defendants correctly assert, the Plaintiffs
could have requested a stay of the administrative proceeding and
sought immediate relief in state or federal court in 2003. Also,
the Plaintiffs' administrative appeal cannot be considered
"useful" because the claim failed, which required the Plaintiff
to seek redress in federal court. Although some of the issues
researched for the administrative claim relate to the Plaintiff's
constitutional violation, had the Plaintiff succeeded in the
appeal before the State Commissioner the Section 1983 federal
action would not have been necessary and the Plaintiffs would not
have a claim for attorney's fees under Section 1988. The Court
finds that the Plaintiff has failed to show how "the work product
from the administrative proceedings was work that was both useful
and of a type ordinarily necessary to advance the civil rights
litigation to the stage it reached before settlement." Webb,
471 U.S. at 243. Therefore, it is unreasonable to award any fees
for the hours billed for the administrative appeal from April 24,
2003 until January 29, 2004.
3. Federal Litigation
The first notation in Mr. Parpas' billing statement that
contemplated a federal action occurred on January 24, 2004, when
he billed 5.6 hours for reading "secondary sources regarding
preliminary injunctions in general." For the next three weeks,
until February 18, 2004, Mr. Parpas billed an astonishing 157
hours researching the law of preliminary injunctions.
From February 18, 2004, until the case was filed on March 5,
2004, Mr. Parpas spent a mind boggling 159 hours for multiple
entries of work described in such terms as drafting, revising,
rewording, rephrasing, reorganizing, researching, condensing,
correcting, elaborating, reconciling, checking, ensuring the
persuasiveness and cogency, ensuring the synchronous in
contentions, and ensuring the cohesiveness of his various
After the case was filed, counsel spent between 8 to 12.5 hours
a day almost every day in March preparing for the case. Billing
entries that were logged include preparing for oral argument,
drafting discovery and motions, and researching a smorgasbord of
legal topics. Attached to Mr. Parpas' billing statement is a list
of 75 issues researched, including: bond requirements; public
interest; Younger abstention; ancillary jurisdiction; preemption;
contact sports of hockey, basketball and football rules; teen and
adolescent growth patterns; review of medical text regarding
growth, height, muscle percentage for boys and girls during
junior high school; obesity; media coverage of women's
achievements in sports; and the definition of the word "action."
In total, Mr. Parpas is billing for 242.9 hours in the month of
March after filing the case on March 5.
The month of April saw a resolution of the case and a continued
pattern of unreasonable and excessive billing entries. On April
5, 2004, Mr. Parpas billed 7.6 hours for a Court appearance, oral
argument before Judge Spatt and settlement negotiations with the
defendants' counsel. The Defendants contend that these
proceedings only took 3 hours. On April 28, 2004, Mr. Parpas
billed 5.3 hours for a conference with Magistrate Judge E. Thomas
Boyle, while the Defendants argue the conference only took 3
In light of the grossly unreasonable and largely excessive
billing entries of 1320.10 hours, the hourly submission by Mr.
Parpas is deemed totally unreliable. The Court will now consider
other factors, such as the Defendants' offer of attorneys fees
and the amount awarded in a similar case, in deciding what the
reasonable hours expended should be for this case.
The State Defendants diligently proposed a revised billing
statement. Counsel for the State Defendants reviewed each entry
in the Plaintiffs' 25 page billing summary and marked each
statement of work with a reasonable amount of hours. The
Defendants reasonable hourly total was 233.5 hours of work.
A similar case, Rotella v. Bd. of Educ. of the City of New
York, No. 01-0434, 2002 U.S. Dist. LEXIS 507 (E.D.N.Y. 2002), is
very instructive regarding the reasonable amount of hours. In
Rotella, the plaintiffs' case lasted approximately six months
from inception to settlement and encompassed a one-day hearing on
a motion for a TRO and a two-day hearing on a preliminary
injunction. The case was settled shortly after the hearing. In
that case, the plaintiffs' three attorneys billed approximately
145 hours for work leading up to and including the two-day
preliminary injunction hearing. The court examined the billing
records and found numerous instances of duplicative and excessive
hours billed, unnecessary work performed, advancing legal
arguments on issues that were not in dispute, paralegal
administrative work performed by attorneys, and multiple
instances of redrafting to the same documents. Id. The court
decided to reduce the hours claimed by the attorneys by 30% for
one of the associates. Id. at *10. In it decision, the court
awarded approximately 115 hours for the work performed up to and
including the preliminary injunction hearing.
The Court agrees with the reasoning and determination set forth
in Rotella. The commencement of a routine Section 1983 action
with a complaint, order to show cause, and temporary restraining
order should not take an attorney more than 100 hours of work. In
making this determination, the Court notes that this amount is in
line with other cases that lasted much longer than three months.
See, e.g., Morris v. Eversley, 343 F. Supp. 2d 234, 248
(S.D.N.Y. 2004) (finding 712 hours reasonable for a case that
lasted two years and ended with a trial); Hightower,
325 F. Supp. 2d at 217 (finding 437 hours reasonable for a case that
lasted over three years and ended with a trial); Elliott v. Bd.
of Educ. of Rochester City Sch. Dist. 295 F. Supp. 2d 282, 286
(W.D.N.Y. 2003) (finding 135 hours reasonable for a case that
lasted one year before it settled). Accordingly, the Court finds
that 125 hours is a more than reasonable number of hours to
expend on the federal litigation stage of this case.
4. Application for Attorney's Fees
The Court recognizes the Plaintiffs' right to bill for time
spent applying for fees and costs. See Fink v. City of New
York, 154 F. Supp. 2d 403, 412 (E.D.N.Y. 2001). However, the
Court finds that the 150 hours Mr. Parpas is requesting for his
fee application is grossly amplified. Other cases in this
district have found that a reasonable amount of hours to award
for compiling a motion for attorneys fees in a routine case to be
5 to 15 hours. See White v. White Rose Food,
86 F. Supp. 2d 77 (E.D.N.Y. 2000); Savino v. Computer Credit, Inc.,
71 F. Supp. 2d 173 (E.D.N.Y. 1999) (reducing the number of compensable
hours from the claimed amount of forty to a total of five). A
more complex cases that involved a six-day jury trial, eight
depositions, and 17,000 pages of documents awarded a generous 30
hours for the motion for attorney's fees. See Fink,
154 F. Supp. 2d at 412.
In this case, the Plaintiffs' motion for attorney's fees is a
routine motion that consists of an affidavit, memorandum of law,
a billing statement, a letter from an attorney on the hourly rate
that his law office charges, and print-outs of internet pages
regarding the consumer price index. However, the Plaintiff
unnecessarily devoted five pages of his memorandum of law arguing
that the prevailing rate in the Eastern District should be
increased by 30% to compensate for the increase in the consumer
price index and inflation. Also, the billing statement contains
numerous instances of excessive and unreasonable billing, such
as: 4.5 hours to Shepardize case law; 9.5 hours recording cases
and formulating arguments; 4 hours preparing for a settlement
conference; and 7.5 hours organizing, clarifying, editing, and
amplifying billing records regarding work done on subject
action. In light of the routine nature of this case, the Court
finds that a reasonable amount of hours to spend on this motion
is 15 hours.
The plaintiffs are entitled, under the provisions of
42 U.S.C. § 1988, to reimbursement for the reasonable costs incurred in
pursuing the litigation, although payment is not permitted for
items which constitute routine office overhead.
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.
1998). The Second Circuit has held that reasonable identifiable
out-of-pocket disbursements, which are ordinarily charged to
clients, are recoverable. See United States Football League v.
National Football League, 887 F.2d 408, 416 (2d Cir. 1989); see
also Kuzma v. Internal Revenue Service, 821 F.2d 930, 933-34
(2d Cir. 1987) (providing a non-exclusive list of recoverable
costs including photocopying, travel and telephone costs).
The Plaintiff requests a total of $544.15 in costs, which
consists of $23.70 for postage, $200.00 for photocopying, $170 in
court fees, and $150.45 for travel costs. The Court agrees that
these were reasonable costs incurred in pursuing the litigation.
The Court now calculates the fees to be awarded to Plaintiffs'
counsel Jason G. Parpas.
156.9 hours @ $135 per hour = $ 21,181.50
Costs $ 544.15
Total Fees and Costs $ 21,725.65
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