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AIELLO v. TOWN OF BROOKHAVEN

June 13, 2005.

THOMAS and MARIE AIELLO, et al., Plaintiffs,
v.
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.

  I.

  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.

  II.

  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 Cir. 1998).

  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. 1995).

  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," ...


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