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MURRAY v. COMMISSIONER OF STATE OF NEW YORK DEPT. OF EDUC.

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,
v.
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).

I. BACKGROUND

  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.

  II. DISCUSSION

  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 stated:
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 was explained:
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 follows:
(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 ...


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