United States District Court, E.D. New York
June 13, 2005.
THOMAS and MARIE AIELLO, et al., Plaintiffs,
TOWN OF BROOKHAVEN, Defendant.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
Individuals residing in the immediate vicinity of a former
municipal landfill ("plaintiffs") sued the Town of Brookhaven
("Town") under the Resource Conservation and Recovery Act
("RCRA"), Clean Water Act ("CWA"), and state common law for
pollution of a pond and creek. General familiarity with the
litigation that followed is presumed. See Aiello v. Town of
Brookhaven, 136 F. Supp. 2d 81 (E.D.N.Y. 2001) (finding that
Town was not liable under CWA, but was responsible under RCRA for
contaminating Mott's Creek and Mott's Pond because it contributed
to disposal of solid waste presenting imminent and substantial endangerment to environment); Aiello v.
Town of Brookhaven, No. 94-CV-2622 (E.D.N.Y. Aug. 15, 2001)
(dismissing plaintiffs' state common law claims).
Pending before the Court is plaintiffs' counsel's motion for
attorneys' fees and costs pursuant to
42 U.S.C. § 6972(e).*fn1 For the reasons that follow, the Court awards
counsel attorneys' fees in the amount of $376,315.50 and costs in
the amount of $29,932.54.
When they commenced this action, plaintiffs were represented by
the law firm of Burton, Scott and Associates ("Burton firm"). In
January 1997, the Burton firm retained the law firm of Meyer,
Suozzi, English and Klein ("Meyer firm") as litigation
co-counsel. In November 2004, counsel moved for an interim,
pre-judgment award of attorneys' fees in the amount of
$290,424.50 for the Burton firm and $185,286.25 for the Meyer
firm. Counsel also sought costs in the amount of $30,845.15. No
action was taken by the Court until final judgment was entered on December 20,
2004.*fn2 Magistrate Judge Wall then endeavored to resolve
the parties' differences with respect to attorneys' fees and
costs, but was unsuccessful. The Court thereafter afforded
counsel the opportunity to supplement their application to
include the period from the submission of their motion through
the entry of judgment. In their supplemental submission, counsel
requested an additional $3,395.00 in fees for the Burton firm and
$10,112.50 in fees for the Meyer firm.*fn3 Their
supplemental submission also sought a 25 percent equitable fees
enhancement due to the contingent nature of their fee
arrangement; such enhancement increased the total fees request
from $489,218.25 to $611,522.81.
The Town posits the following objections: (1) certain billing
statements lack the requisite specificity; (2) certain billing
statements request hours that are excessive, redundant and
unnecessary; (3) fees should not be paid for plaintiffs'
unsuccessful statelaw claims; (4) the hourly rate sought is excessive and
unsubstantiated; (5) an equitable enhancement is not warranted;
and (6) counsel's requested costs are unsubstantiated and, with
respect to certain requests, not compensable.
A. Applicable Law
As noted, see supra note 1, RCRA authorizes a court to "award
costs of litigation (including reasonable attorney . . . fees)"
to a "prevailing or substantially prevailing party."
42 U.S.C. § 6972(e).*fn4 As the Supreme Court has explained, "[t]his
language is similar to that of many other federal fee-shifting
statutes; our case law construing what is a `reasonable' fee
applies uniformly to all of them." City of Burlington v. Dague,
505 U.S. 557, 562 (1992) (internal citations omitted). "The
`lodestar' figure has, as its name suggests, become the guiding
light of [the Supreme Court's] fee-shifting jurisprudence." Id.
There is "a strong presumption that the lodestar represents the
reasonable fee." Id. (internal quotation marks omitted). The
lodestar figure "is arrived at by multiplying `the number of
hours reasonably expended on the litigation . . . by a reasonable
hourly rate.'" Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 172
(2d Cir. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). The party seeking reimbursement bears the burden of
proving the reasonableness and necessity of hours spent and rates
charged. See generally, New York State Ass'n for Retarded Children, Inc. v.
Carey, 711 F.2d 1136 (2d Cir. 1983) ("Carey").
B. Determination of Attorneys' Fees
1. Hours Billed
"In reviewing a fee application, the district court examines
the particular hours expended by counsel with a view to the value
of work product of the specific expenditures to the client's
case." Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir.
1997). Where documentation of billable hours expended is
deficient, the Court may reduce the fee award accordingly. See
Hensley, 461 U.S. at 433. In addition, the district court
"should exclude excessive, redundant or otherwise unnecessary
hours[.]" Quarantino v. Tiffany Corp., 166 F.3d 422, 425 (2d
Counsel seek to recover fees for 1,453.57 hours of legal
services from October 19, 1993 through December 20, 2004. These
hours are broken down as follows: (1) with respect to the Burton
firm, Bernard Burton ("Burton"), 552.20 hours; Jonathan Scott
("Scott"), 155.32 hours; and Wendi Lindsey ("Lindsey"), 184.75
hours; and (2) with respect to the Meyer Firm, Robert Zausmer
("Zausmer"), 480.95 hours; G. Oliver Koppell ("Koppell"), 36.60
hours; Michael Ciaffa ("Ciaffa"), 37.50 hours; Andrew Turro
("Turro"), 2.25 hours; and paralegal services, 4.00 hours.
a. Adequacy of time records
The Town contends that counsel's time records are objectionable
due to their lack of specificity. In particular, they point to
vague time entries in Burton and Zausmer's billing statements and
the use of "block billing" by the Meyer firm, both of which, they argue, unduly impede the Court's ability to ascertain the nature
of the work performed.*fn5 Counsel respond that their
billing statements are appropriate, arguing that the Court,
applying its knowledge of the case, should be able to decipher
the time entries by reference to the context in which they occur.
In Carey, 711 F.2d at 1148, the Second Circuit held,
"[h]ereafter, any attorney . . . who applies for court-ordered
compensation in this Circuit for work done after the date of this
opinion must document the application with contemporaneous time
records. These records should specify, for each attorney, the
date, the hours expended, and the nature of the work done." Id.
(emphasis added). It is not required that counsel describe in
great detail how billable time was spent; it is sufficient to
identify the general subject matter of time expenditures. See
Perdue v. City Univ. of New York, 13 F. Supp. 2d 326, 345
(E.D.N.Y. 1998). Even where an attorney's time entries are, on
their face, vague, "courts may attempt to decipher them by
reference to the context in which these entries occur [to
determine] what work was involved." Bonnie & Co. Fashions, Inc.
v. Bankers Trust Co., 970 F. Supp. 333, 342 (S.D.N.Y. 1997)
(alterations in original; internal quotation marks omitted).
Courts may also use their knowledge of a case to assess time
entries. See Algie v. RCA Global Communications, Inc.,
891 F. Supp. 875, 894 (S.D.N.Y. 1994), aff'd, 60 F.3d 95 (2d Cir.
Nonetheless, "[w]here the documentation of hours is inadequate,
the district court may reduce the award accordingly." Hensley,
461 U.S. at 433. Because "it is unrealistic to expect a trial judge to evaluate and rule on every
entry in an application," courts apply across-the-board
percentage cuts. Carey, 711 F.2d at 1146.
Courts regularly apply such percentage cuts to fee awards to
account for vague time entries. See, e.g., Local 32B-32J, SEIU
v. Port Auth., 180 F.R.D. 251, 253 (S.D.N.Y. 1998) (reducing the
requested attorney's fees by twenty percent "due to vague
descriptions contained in many of the attorney time records.");
Wilder v. Bernstein, 975 F. Supp. 276, 283-284 (S.D.N.Y. 1997)
(reducing the requested fees by ten percent to account for vague
time entries); Meriwether v. Coughlin, 727 F. Supp. 823, 827
(S.D.N.Y. 1989) (reducing fee request by fifteen percent to
account for certain time entries that were "too vague to
adequately assess reasonableness"). Similarly, although "block
billing is not prohibited in this Circuit," Rodriguez,
84 F. Supp. 2d at 425, because block billing "renders it difficult to
determine whether, and/or the extent to which, the work done by . . .
attorneys is duplicative or unnecessary," courts apply
percentage cuts where there is "a substantial amount" of block
billing in a fee request. Sea Spray Holdings, Ltd. v. Pali Fin.
Group, Inc., 277 F. Supp. 2d 323, 326 (S.D.N.Y. 2003) (reducing
the requested fees by fifteen percent); see also Gonzalez v.
Bratton, 147 F. Supp. 2d 180, 213 (S.D.N.Y. 2001) (reducing the
requested fees by twelve percent); Soler v. G & U, Inc.,
801 F. Supp. 1056, 1061-62 (S.D.N.Y. 1992) (noting that "commingling of
activities within one time entry impedes the court's efforts to
evaluate the reasonableness of any of the listed activities[.]").
Having carefully reviewed Zausmer and Burton's billing
statements, the Court agrees that both include vague time
entries. There is, however, a qualitative difference between the
two. Although Zausmer's billing statements include some vague time entries, the number of such entries was not significant, and
the Court was, based on its knowledge of the case, able to
decipher most of those entries without need for a great deal of
speculation; therefore, no reduction is necessitated. This is
not, however, the case with Burton's statements, which are rife
with vague entries for "conferences," "meetings," and "research,"
without any further explanation of those services, and which
cannot be explained by reference to the context in which they
occurred. Accordingly, the Court finds that a fifteen percent
reduction of Burton's hours is warranted.
As noted, the Town also contends that the Meyer firm's use of
block billing would impede the Court's ability to ascertain the
nature of the work performed. The Court agrees. Having reviewed
the Meyer firm's billing statements, the Court notes that
wherever a time entry contained multiple tasks, such as
conducting research, participating in conferences and drafting
correspondence, the entry did not break down how much time was
spent on each task. Due to ambiguities created by this
substantial use of block billing, and the resulting inherent
difficulties the Court would encounter in attempting to parse out
whether the number of hours spent on the work performed was
reasonable, the Court finds that a ten percent reduction of the
hours billed by the members of the Meyer firm is warranted.
b. Excessive, redundant and unnecessary hours
The Town argues that certain hours requested are excessive,
redundant or otherwise unnecessary. Specifically, it contends
that it was unnecessary to have multiple attorneys appear at
certain court appearances and that an inordinate number of hours
were dedicated to certain services in light of the task at hand.
Counsel do not respond to these contentions. The Court notes that in a complex case such as this,
it is common for more than one attorney to attend a court
appearance or work on a particular brief. See Ursa Minor Ltd. v.
Aon Fin. Prod., Inc., 2001 WL 1842042, at *6 (S.D.N.Y. May 30,
2001). In addition, two factors militate against any discount of
hours. First, the quality of the work product was first rate;
more time is necessarily expended on an excellent legal brief
than on a shoddy one of the same length. Second, the results
obtained were excellent: Although plaintiffs were not ultimately
successful on their CWA and state-law claims, their success on
their RCRA claim resulted in a remediation plan that will remove
and treat the contaminants in Mott's Creek and Mott's Pond,
restore the area to "a pond surrounded by a diverse emergent and
forested wetland buffer[,]" and reduce the risk of future
contamination from the landfill. See Judgment dated December
20, 2004, at 5. Indeed, this victory was achieved in the face of
an able and aggressive defense mounted by the Town.
The Town further contends that, due to what it assumes are
typographical errors, Scott's billing statement contains
duplicate entries for certain services. Counsel do not respond to
this contention. The Court, having reviewed Scott's statement,
agrees that he inadvertently billed twice for certain services,
resulting in over-billing by 8.3 hours; accordingly, the Court
reduces Scott's hours by that amount.
c. Unsuccessful claims
The Town contends that counsel are not entitled to time
expended towards prosecution of plaintiffs' unsuccessful
state-law claims. In particular, the Town argues that counsel are
not entitled to fees for the period from October 5, 2001, when
they began briefing those claims, to August 15, 2002, when the
Court dismissed those claims. Such exclusion would result in a reduction of Burton's request by
10.28 hours and Zausmer's request by 58.45 hours.
"When a plaintiff has achieved substantial success in the
litigation but has prevailed on fewer than all of his claims, the
most important question in determining a reasonable fee is
whether the failed claim was intertwined with the claims on which
he succeeded." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 762
(2d Cir. 1998); see also Hensley, 461 U.S. at 434-35. Where a
plaintiff has won substantial relief and all plaintiff's claims
for relief involve "`a common core of facts' or were `based on
related legal theories,' so that [m]uch of counsel's time was
devoted generally to the litigation as a whole, making it
difficult to divide the hours expended on a claim-by-claim
basis," the lodestar should not be adjusted downward to account
for the related unsuccessful claims. LeBlanc-Sternberg,
143 F.3d at 762 (quoting Hensley, 461 U.S. at 434-5). In the
present case, however, it is not difficult for the Court to
divide the hours expended on a claim-by-claim basis; during the
period from October 5, 2001 to August 15, 2002, Burton and
Zausmer's efforts were focused solely on the state-law claims.
Moreover, they have not shown how those claims were inextricably
intertwined with the RCRA claims, on which they had already
prevailed by the time they began focusing their efforts on the
state-law claims. Accordingly, the Court finds the requested
deductions to be appropriate.
With respect to plaintiffs' CWA claim, the Town does not seek a
reduction of counsel's requested fees award to account for
plaintiffs' lack of success. The Court notes that, unlike their
state-law claims, plaintiffs' claims for relief under the CWA and
RCRA were based on related legal theories, and it would be
difficult to divide the hours expended on those claims, a fact that the Town appears to acknowledge.
See Def.'s Mem. Opp'n Pls.' Counsel's Req. Fees at 18 ("[w]hile
the Clean Water Act claim was arguably `inextricably intertwined'
with the litigation of the RCRA claim, the same cannot be said
for the state law claims."). Accordingly, the lodestar will not
be adjusted downward to account for plaintiffs' lack of success
on the CWA claim.
d. Calculation of reasonable hours
Based on the foregoing, the Court calculates the reasonable
number of hours for counsel to be as follows:
Deduct. for Deduct. for Deduct. for
Requested State-law Double Inadequate Adjusted
Hours Claims Billing Records Hours
Burton 552.20 -10.28 -15% 460.63
Scott 155.32 -8.30 147.02
Lindsey 184.75 184.75
Zausmer 480.95 -58.45 -10% 380.25
Koppell 36.60 -10% 32.94
Ciaffa 37.50 -10% 33.75
Turro 2.25 -10% 2.03
Paralegal 4.00 -10% 3.60
2. Reasonable Hourly Rates
With respect to the Meyer firm, counsel request compensation at
those attorneys' current billing rates, namely, for Zausmer, $350
per hour, Koppell, $350 per hour, Ciaffa, $350 per hour, and
Turro, $325 per hour. With respect to the Burton firm, counsel
request compensation at those attorneys' current billing rates,
namely, for Burton, $350 per hour, Scott, $350 per hour, and Lindsey, $250 per hour.
Counsel also request compensation for the Meyer firm's paralegal
at her current rate of $100 per hour. The Town contests these
rates as excessive and out of sync with the rates prevailing in
In determining the "reasonable hourly rate," courts ask whether
"the requested rates are 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, 895 n. 11 (1984); see also In re "Agent Orange"
Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987). The
"community" for which the prevailing rate is measured is the
geographic area in which "the action was commenced and
litigated." Arbor Hill Concerned Citizens Neighborhood Ass'n v.
County of Albany, 369 F.3d 91, 94 (2d Cir. 2004). Hourly rates
approved in recent Eastern District of New York cases have ranged
from $200 to $300 for partners, $100 to $150 for junior
associates, and $200 to $250 for senior associates. See King v.
JCS Enterprises, Inc., 325 F. Supp. 2d 162, 169-70 (E.D.N.Y.
2004); Duke v. County of Nassau, 2003 WL 23315463 (E.D.N.Y.
Apr. 14, 2003); Hiller v. County of Suffolk, 199 F.R.D. 101,
109 (E.D.N.Y. 2001); Fernandez v. North Shore Orthopedic Surgery
& Sports Med., P.C., 2000 WL 130637, at *2 (E.D.N.Y. Feb. 4,
2000); Greenidge v. Mundo Shipping Corp., 60 F. Supp.2d 10,
12-13 (E.D.N.Y. 1999). Thus, counsel's requested rates are in
excess of the prevailing rates.
The lodestar may, however, also reflect such factors as time
and labor required, novelty and difficulty of issues, skill
required, loss of other employment in taking the case, whether
the fee is fixed or contingent, time limitations imposed by the
client or circumstances, the amount involved and result obtained,
counsel's experience, reputation and ability, the undesirability of the case and the nature and
length of the relationship with the client. See Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546,
564-65 (1986); Krieger v. Gold Bond Bldg. Products,
863 F.2d 1091, 1099 (2d Cir. 1988). In many of these respects, this case
was an exceptional one.
As counsel correctly point out, the case involved factual and
legal issues that were difficult and sharply disputed. For
example, having written at length on the issues, the Court can
attest that the question of whether the Court had subject matter
jurisdiction presented a complex issue of first impression. See
Aiello, 136 F. Supp. 2d at 106-10 (concluding that the Court had
subject matter jurisdiction). Similarly, the discussion of the
applicable standard pursuant to which the Town could be held
liable under RCRA was far from straightforward. See id. at
110-17 (concluding that Town contributed to disposal of solid
waste within meaning of 42 U.S.C. § 6972(a)(1)(B) and that
aesthetic considerations may trigger liability under that
statute). Moreover, the contingent nature of counsel's
representation, the riskiness of the case, and the success
counsel obtained for their clients, resulting in a remediation
plan that will remove the contaminants from Mott's Creek and
Mott's Pond and return them to their natural state, all militate
in favor of a generous fee award.
Burton and Zausmer's substantial litigation experience also
support a generous fee award.*fn6 See Luciano,
109 F.3d at 116 (noting that in addition to the "extent of success achieved[,]" court may also consider counsel's
"experience and expertise in the field of law."). The Town argues
that the lodestar should not be adjusted to reflect Burton and
Zausmer's many years of experience because their experience with
this particular type of litigation was limited. This argument
simply misses the point. As the Second Circuit recently noted,
because most legal skills are transferrable from one area of
practice to another, courts, in establishing the lodestar, look
to an attorney's overall experience rather than the attorney's
experience in a particular area of practice. See A.R. ex rel.
R.V. v. New York City Dep't of Educ., 407 F.3d 65, 82 (2d Cir.
2005) ("Even though much of the lawyers' careers was spent
practicing in areas other than education law, their overall legal
experience merited a higher hourly rate because most important
legal skills are transferrable.") (internal quotation marks
Based on the foregoing factors, and considering that it has now
been eleven years since plaintiffs filed their complaint, the
Court finds Zausmer and Burton's current billing rates of $350
per hour to be reasonable and appropriate for all their work in
this case. See Gierlinger v. Gleason, 160 F.3d 858, 882 (2d
Cir. 1998) ("in order to provide adequate compensation where the
services were performed many years before the award is made, the
rates used by the court to calculate the lodestar should be
`current rather than historic hourly rates.'") (quoting Missouri
v. Jenkins, 491 U.S. 274, 284 (1989)). As for those other than Burton and Zausmer, however, counsel
have failed to provide the Court with any information regarding
their levels of skill, experience or reputation. With respect to
Koppell, Ciaffa and Turro, the only information counsel offer is
that they are or were partners in the Meyer firm. With respect to
Scott and Lindsey, the only information counsel offer is that
Scott was a partner in the Burton firm and that until October
1996, Lindsey served as independent associate counsel to the
firm. With respect to the Meyer firm's paralegal, counsel offer
no information. Counsel's submissions are devoid of any
explanation of how long each of these individuals has been
practicing; nor do counsel make any effort to describe the nature
of those individuals' experience. Thus, counsel have failed to
meet their burden of establishing the reasonableness of the
hourly rates requested for these individuals. See Blum,
465 U.S. at 896 n. 11 ("the burden is on the fee applicant to produce
satisfactory evidence . . . that the requested [hourly] rates are
in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience,
and reputation.") (emphasis added). Accordingly, the Court finds
it appropriate to reduce these requested rates. See General
Electric Co. v. Compagnie Euralair, S.A., 1997 WL 397627, at *5
(S.D.N.Y. Jul. 3, 1997) (holding that where plaintiff's counsel
did not provide court with adequate information as to counsel's
experience level or why billing rate was reasonable, court would
reduce fee request); see also Marisol A. v. Giuliani,
111 F. Supp. 2d 381, 388 n. 5 (S.D.N.Y. 2000) (holding that where fee
applicant failed to provide resumes for a number of paralegals
and it was unclear how much experience they had, court would
calculate such paralegals' fees at $75, the lowest rate
Based on their failure to provide any information regarding
their skill, experience or reputation, the Court would be inclined to afford
these individuals only the lowest available prevailing rates,
namely $200 for partners, $100 for associates, and $75 for
paralegals. In light of the complexity of the case, its inherent
risks, and the exceptional results achieved, however, the Court
finds that an hourly rate of $250 is appropriate for Koppell,
Ciaffa, Turro, and Scott; an hourly rate of $150 is appropriate
for Lindsey; and an hourly rate of $100 is appropriate for the
Meyer firm's paralegal.
With respect to counsel's request for an across-the-board
twenty-five percent fees enhancement due to the inherent risks,
it is well-settled in this Circuit that risk enhancements are not
permissible under fee-shifting statutes such as RCRA. See
Dague, 505 U.S. at 565 ("no contingency enhancement whatever is
compatible with the fee-shifting statutes at issue[,]" namely,
42 U.S.C. § 6972(e) of RCRA and 33 U.S.C. § 1365(d) of the CWA);
Loper v. New York City Police Dep't, 853 F.Supp.716, 721
(S.D.N.Y. 1994) (stating that in light of Dague, "fee
enhancements under fee shifting cases are no longer permissible
in this Circuit."). Moreover, the risks have been subsumed in the
Court's calculation of the reasonable hourly rates. See
Greenbaum v. Svenska Handelsbanken, N.Y., 998 F.Supp.301, 306
(S.D.N.Y. 1998) ("It is the practice of courts in awarding
attorneys' fees to subsume all factors into the lodestar
calculation."). Accordingly, the Court denies counsel's request
for a twenty-five percent fee enhancement.
4. Calculation of the Lodestar Amount
With the appropriate adjustments in hours billed and hourly
rates, the lodestar calculation is as follows: The Burton Firm
Hours Hourly Rate Total
Burton 460.63 $350 $161,220.50
Scott 147.02 $250 $36,755.00
Lindsey 184.75 $150 $27,712.50
The Meyer Firm
Hours Hourly Rate Total
Zausmer 380.25 $350 $133,087.50
Koppell 32.94 $250 $8,235.00
Ciaffa 33.75 $250 $8,437.50
Turro 2.03 $250 $507.50
Paralegal 3.60 $100 $360.00
As noted, in addition to attorneys' fees, counsel also seek
costs in the amount of $30,845.15. The Second Circuit has held
that reasonable, identifiable out-of-pocket disbursements
ordinarily charged to clients are recoverable. See United States
Football League, 887 F.2d 408, 416 (2d Cir. 1989); see also
Kuzma v. Internal Revenue Serv., 821 F.2d 930, 933-34 (2d Cir.
1987) (providing a non-exclusive list of recoverable costs,
including photocopying, travel and telephone costs). Payment is
not permitted, however, for items which constitute routine office
overhead. See LeBlanc-Sternberg, 143 F.3d at 763. The Town contends that certain of counsel's costs, namely
business meals and secretarial overtime, are non-recoverable
overhead. Counsel concede that such expenses, totaling $496.93,
are not recoverable as costs. See Pls.' Reply Mem. at 8.
Accordingly, such costs are disallowed.
The Town next contends that counsel's Westlaw service charges,
totaling $7,463.66, are non-recoverable. Because "the use of
online research services likely reduces the number of hours
required for an attorney's manual search, thereby lowering the
lodestar, . . . in the context of a fee-shifting provision, the
charges for such online research may properly be included in a
fee award." Arbor Hill, 369 F.3d at 96. Nor does the Court have
any reason to doubt the veracity of counsel's Westlaw service
charges. Accordingly, that cost is allowed.
Finally, the Town contends that the bulk of counsel's request
of $21,096.37 for "miscellaneous expenses" lacks sufficient
specificity to constitute a reasonable, identifiable cost.
Counsel respond that, had the Town more closely reviewed
Zausmer's affirmation and the Meyer firm's billing statements, it
would have realized that the miscellaneous expenses consist of
$1,508.75 in payments to court reporting firms for transcripts,
$415.68 for color enlargements, and $19,172.94 in payments to
Lindsey for work as a consultant.
Court reporter services are reimbursible costs. See New
Leadership Comm. v. Davidson, 23 F. Supp. 2d 301, 311 (E.D.N.Y.
1998). The Court has no reason to doubt the veracity of the Meyer
firm's billing statements reflecting $1,508.75 for court reporter
services. Accordingly, that cost is allowed.
Enlargements are reimbursable costs, but only for "exhibits
[that] were necessary to the understanding of an issue and a material aid to
the jury." See Robinson v. Burlington Northern R.R. Co.,
963 F. Supp. 691, 694 (N.D. Ill. 1997). Because counsel provide no
information about the nature of the enlargements for which they
seek reimbursement, it is not apparent that the enlargements were
of necessary exhibits; therefore, that cost is disallowed.
With respect to Lindsey, as noted, she served as associate
counsel to the Burton firm until October 1996; her work on behalf
of that firm is reflected in the Court's attorneys' fees award.
From February 1997 to December 1999, she performed a range of
legal services for the Meyer firm as a consultant, for which she
submitted regular invoices and was paid at a rate of $75 per
hour. Although that work should more appropriately have been
included in counsel's request for attorneys' fees rather than
their request for costs, the Court will not penalize counsel for
that error in categorization. The Court, having carefully
reviewed Lindsey's bills to the Meyer firm, finds the number of
hours requested (approximately 255 hours) to be reasonable for
the work performed. With respect to the rate requested, given
that the Court found $150 per hour to be a reasonable rate for
Lindsey's work on behalf of the Burton firm, the Meyer firm's
request to be compensated for her work at the discounted rate of
$75 hour is abundantly reasonable. Thus, although this "cost"
should have been included in the request for attorneys' fees, it
is nonetheless allowed.
Based on the foregoing, the Court reduces counsel's request by
$912.61 and awards them costs in the amount of $29,932.54. D. Interest on Attorneys' Fees Award
Although the parties do not raise the issue, the Court will
address the question of interest on its award in order to
circumvent future collateral litigation. "[I]t is an open
question in the Second Circuit whether interest runs from the
date of the judgment establishing the right to the award of
attorneys fees or from the date of the judgment establishing its
quantum." Albahary v. City & Town of Bristol,
96 F. Supp. 2d 121, 122 (D. Conn. 2000). Since Albahary was decided, the
Second Circuit Court of Appeals has still not taken up this
issue. The majority rule, followed in the Fifth, Sixth, Eighth,
Ninth, Eleventh, and Federal Circuits, is that interest accrues
"from the date the party becomes entitled to the award even if
that award is not quantified until a later point." Id. at 123
(collecting cases). The majority position is based on the
realization that, "[w]hile the fee-paying party is under no legal
compulsion to satisfy its obligation before quantification, it
also `suffers no prejudice from any delay in quantifying the
award because it has use of the money in the interim and because
the statutory interest rate is tied to the U.S. Treasury Bill
rate.'" Albahary, 96 F. Supp. 2d at 123 (quoting Jenkins v.
Missouri, 931 F.2d 1273, 1277 (8th Cir. 1991)). The minority
rule, followed in the Third, Seventh and Tenth Circuits, states
that interest accrues from the date it is quantified. See id.
The Court follows the Albahary court in aligning itself with
the majority rule; therefore, it awards counsel post-judgment
interest on the award of attorneys' fees and costs at the U.S.
Treasury Bill rate, see 28 U.S.C. § 1961(a), from the date they
became entitled to receive attorneys' fees and costs. See King,
325 F. Supp. 2d at 175 (following Albahary and awarding
"post-judgment interest on the award of attorneys' fees and costs at the U.S. Treasury Bill rate" from the date of judgment). That
date is determined to be December 20, 2004, the date the Court
Based on the foregoing, counsel's application for attorneys'
fees and costs is granted, as modified by the Court. Counsel are
awarded attorneys' fees in the amount of $376,315.50 and costs in
the amount of $29,932.54. The total award is subject to interest,
accrued in accordance with 28 U.S.C. § 1961, from December 20,
2004, until the award is paid.