United States District Court, S.D. New York
June 13, 2005.
REGINE LEGRAND, ET AL., Plaintiffs,
NEW YORK RESTAURANT SCHOOL/EDUCATION MANAGEMENT CORP., Defendant.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE P. KEVIN CASTEL, UNITED STATES DISTRICT JUDGE
Plaintiffs Regine Legrand ("Legrand"), Rose Lafrance
("Lafrance"), Margo Hutchinson-Davis ("Hutchinson-Davis"), and
Donna Mattos ("Mattos") (collectively, "plaintiffs") brought this
employment discrimination action against defendant New York
Restaurant School/Education Management Corporation
("School"),*fn1 alleging violations of, inter alia,
42 U.S.C. § 1981 ("§ 1981"), and Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").
Before the Court are the applications of: (1) the plaintiffs
for an award of attorney fees and costs; and (2) the Law Offices
of Leonard N. Flamm ("Flamm"), former counsel to the plaintiffs,
for an award of attorney fees. The applications are addressed
below. II. BACKGROUND AND FACTS
Flamm represented the plaintiffs in this action until October
21, 2003, when the firm was permitted to withdraw from its
representation of the plaintiffs in this action. The law firm of
Michael Shen and Associates, P.C. ("Shen") appeared on behalf of
the plaintiffs on October 31, 2003. Subsequently, each plaintiff
entered into a settlement agreement with and/or accepted an offer
of judgment from the School.
Thereafter, Flamm made one of the applications that is before
the Court, for an award of attorney fees incurred in connection
with the representation it provided the plaintiffs ("Flamm
application"). The plaintiffs made the other application that is
before the Court, for an award of attorney fees and costs
incurred in connection with the legal services Shen provided for
them ("Shen application").
In support of the respective applications, Flamm and Shen have
submitted the contemporaneous time records of their firms, along
with affidavits and declarations containing information about
each firm's personnel and the services provided in connection
with this action. Among these is a declaration of Michael Shen
("Shen declaration"), which contains, inter alia, information
about costs incurred by the plaintiffs in the prosecution of this
action. The awards sought in the Flamm and Shen applications are
$61,362.50 and $192,775.85,*fn2 respectively.
The School opposed the Flamm application initially. Thereafter,
however, Flamm agreed to assign to the School any right to an
additional award of attorney fees arising out of Flamm's representation of the plaintiffs ("Flamm assignment").*fn3
In consideration thereof, the School agreed to pay Flamm $50,000.
The School opposes the Shen application on the grounds that:
(1) the time devoted to opposing a summary judgment motion was
excessive; (2) certain hours billed by Shen after all plaintiffs
had accepted settlement agreements and/or offers of judgment
should not be included in the application; (3) the
contemporaneous time records submitted by Shen in support of the
application contain vague descriptions and instances of block
billing; and (4) certain time entries are improper as they
pertain to "a different matter involving these parties." In light
of these alleged deficiencies, the School maintains that the
attorney fees sought in the Shen application should be reduced by
A prevailing plaintiff in a Title VII or § 1981 action may
recover reasonable attorney fees. See 42 U.S.C. § 2000e-5(k);
42 U.S.C. § 1988(b). It is undisputed that the plaintiffs are
prevailing parties within the meaning of these statutes.
The determination of reasonable attorney fees begins with the
computation of a lodestar, that is, "the number of hours
reasonably expended on the litigation multiplied by a reasonable
hourly rate." See Hensley v. Eckerhart, 461 U.S. 424, 433,
103 S.Ct. 1933, 1939 (1983).
In general, when fixing a reasonable rate for attorney fees, it
is appropriate for a court to consider and to apply the
prevailing market rates in the relevant community for similar
legal work of lawyers of reasonably comparable skill, experience
and reputation. See Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S. Ct. 1541, 1547 n. 11
(1984). In addition, it is permissible for a court to rely upon
its own knowledge of private firm hourly rates in deciding what
reasonable attorney fees are in the community. See Miele v.
New York State Teamsters Conf. Pens. & Retirement Fund,
831 F.2d 407, 409 (2d Cir. 1987).
In the Second Circuit, a party seeking an award of attorney
fees must support that request with contemporaneous time records
that show, "for each attorney, the date, the hours expended, and
the nature of the work done." New York State Ass'n for Retarded
Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983).
Attorney fee applications that do not contain such supporting
data "should normally be disallowed." Id. at 1154. "Time
records should enable the court to determine the nature of the
tasks performed and the amount of time reasonably required to
perform those tasks." Mr. X. v. New York State Educ.
Department, 20 F. Supp. 2d 561, 564 (S.D.N.Y. 1998). Where
documentation of the number of hours expended is vague or
incomplete, a court may reduce the award. Id. Further, in such
instances, rather than evaluating and ruling on every time entry
in a fee application, a court may apply an across-the-board
percentage reduction to the requested award. See New York
State Ass'n for Retarded Children, 711 F.2d at 1146.
A. Rates of Compensation
In the Shen application, the plaintiffs request hourly rates of
compensation of $375 for work performed by Mr. Shen and $60 for
work performed by a paralegal employed by the firm. In light of
the factors noted above, the Court finds that the requested rates
are reasonable. B. Number of Hours
The plaintiffs request a lodestar of $190,735.50 for 533.45
hours of work performed by Shen between March 15, 2003, and
January 6, 2005. Included in these hours is the following work by
Mr. Shen: (a) approximately 180 hours devoted to opposing a
summary judgment motion filed by the School;*fn4 (b) 2.7
hours on various dates devoted to negotiating an agreement
between Legrand and the School, under which Legrand would receive
a severance payment in exchange for resigning from the School's
employment;*fn5 (c) 0.7 hours devoted to reviewing checks
received and speaking with Legrand and LaFrance on November 30,
2004, and to telephone conferences "re $" with Lafrance,
Hutchinson-Davis and Mattos on December 1, 2004; and (d) 3.6
hours of work on October 7, 2004, devoted to reviewing and
revising proposed jury instructions, prompted by the court's
request that he submit proposed jury instructions in electronic
form. The School objects to these groups of time entries,
contending that the first is excessive and that the others are
inappropriate or too vague to warrant compensation.
According to Shen's records, of the 180 hours that Shen devoted
to opposing the summary judgment motion, 8.0 hours were devoted
to "facts" and 11.3 hours were devoted to "R56," which the Court
understands to refer likely to preparation of the plaintiffs'
statement of disputed material facts, pursuant to Local Civil
Rule 56.1. The other approximately 160 hours are described simply as "prep m.sj," "prep mot," memo sj,"
"worked on motion," or "m.sj." Without additional information
about the component tasks performed during these approximately
160 hours of attorney time, the records before the Court lack the
specificity necessary to enable the Court to evaluate the
reasonableness of expending such a large number of hours opposing
the summary judgment motion. The Court is mindful that the
memoranda submitted in support of the Shen application describe
generally the complexity of the action and the challenges posed
by Mr. Shen's then-recent appearance in the action. For example,
in their memorandum in support of the Shen application, the
plaintiffs state that "since Mr. Shen had only recently become
involved in the case, he had to gather, review and synthesize
much evidence for the first time. The facts are extensive, the
Rule 56.1 Statement of Disputed Facts, alone, being 666
paragraphs and 74 pages, and the legal issues many." While this
and other such statements in the plaintiffs' memoranda are
helpful, they do not remedy fully the lack of specificity in the
individual time records regarding this large number of hours.
Accordingly, the Court finds that the insufficiently described
160 hours should be reduced to 100 hours, resulting in a $22,500
reduction (60 hours @ $375 per hour) in the amount of attorney
fees requested in the Shen application.
The School contends that no award should be made for the 2.7
hours devoted to negotiating an agreement between Legrand and the
School, as that work was conducted after Legrand and Lafrance
accepted offers of judgment. The plaintiffs contend that the
agreement between Legrand and the School concerned Legrand's
separation from employment by the School and "was an integral
part of the resolution of Ms. Legrand's case. . . ." In a civil
rights action, a prevailing plaintiff is not barred from
recovering attorney fees simply because they were incurred after
the entry of judgment. See, e.g., Balark v. Curtin,
655 F.2d 798, 802-03 (7th Cir. 1981) (holding that plaintiff may be compensated for attorney
fees incurred in order to collect on judgment); New York State
Ass'n for Retarded Children, 711 F.2d at 1153-54 (directing an
award of attorney fees incurred, in part, as a result of
post-judgment monitoring of consent decree implementation).
Accordingly, the fact that the 2.7 hours of work contested by the
School occurred after the entry of judgment does not, without
more, render that work non-compensable. The Court finds that an
award of attorney fees for the time entries in question is
The School contends that the 0.3 hours devoted to reviewing
checks and having contemporaneous conversations with Legrand and
Lefrance on November 30, 2004, is "time for a different matter
involving these parties which must be excluded from this
application." The School makes the same contention about 0.4
hours Shen devoted to conversations with Lafrance,
Hutchinson-Davis and Mattos regarding money. The School does not
identify any evidentiary basis for these contentions. Moreover,
the evidence in the record supports the opposite conclusions. The
time entries in question follow closely the entry of judgment
against the School and in favor of Legrand and Lafrance. The time
entries also include communications between Shen and these two
plaintiffs. Settlement negotiations concerning the claims of
Hutchinson-Davis and Mattos were also underway at the time.
Accordingly, the Court finds it reasonable to infer that the
contested 0.7 hours were reasonably devoted to the receipt and
review of payments in satisfaction of the judgment in this action
and discussion concerning those payments and concerning
settlement negotiations with pertinent plaintiffs. The Court
finds that an award of attorney fees for these tasks is
warranted, see Balark, 655 F.2d at 802-03, and that the time
devoted to these tasks was reasonable. According to the School, it was not necessary for Shen to
devote time on October 7, 2004, reviewing and revising the
plaintiffs' proposed jury instructions. The School notes and
the firm's contemporaneous time records confirm that Mr. Shen
prepared proposed jury instructions previously, in April 2004.
The plaintiffs contend that Shen's additional review and revision
of the proposed jury instructions was not untimely, as the court
had not yet determined the final version of the jury
instructions. However, regardless of whether Shen's additional
review and revision of the proposed jury instructions was timely,
no basis in the record exists upon which to conclude that this
additional work was reasonably necessary. Accordingly, a
reduction of $1,350 (3.6 hours @ $375 per hour) in the amount of
attorney fees requested in the Shen application is warranted.
The School challenges a number of other entries in Shen's
contemporaneous time records on the grounds that they are vague
and/or include instances of block billing. A number of entries in
Shen's contemporaneous time records provide little information
about the work performed, indicating only, for example, that Shen
had a conversation with an individual by telephone or devoted
time to "rev[iewing the] file." Without additional information,
such as the general subject matter of a conversation or the
purpose of a review of the firm's file, such descriptions lack
the specificity necessary to enable the Court to determine the
reasonableness of the number of hours billed in the corresponding
entries. These deficiencies warrant an additional $8,000.00
(approximately 5%) across-the-board reduction of the amount of
attorney fees requested in the Shen application.
Although the time records submitted by Shen do contain
instances of block billing, as the School contends, the Court
finds that these are not so extensive as to impede significantly
the Court's assessment of the reasonableness of the hours spent on
the litigation by Shen. Therefore, no reduction in the requested
attorney fee is warranted on this account.
Shen's time records also include an entry for 1.2 hours of work
performed on March 15, 2003, described as "ORIG NOTE"
(capitalization in original). Although the School has not
objected to this entry, the Court notes that the record does not
provide any information about the nature of the work that Shen
might have performed on March 15, 2003, described in Shen's
contemporaneous time records as "ORIG NOTE". Moreover, according
to the Shen declaration, Shen's initial contact with the
plaintiffs in this action did not occur until over two weeks
after that date, on April 2, 2003. Accordingly, the plaintiffs
have not met their burden to demonstrate that an award of
attorney fees for this work would be reasonable. A reduction of
$450 (1.2 hours @ $375 per hour) in the amount of attorney fees
requested in the Shen application is warranted.
The Court finds that the plaintiffs' application for $2,040.35
in costs incurred in the prosecution of this action is
Based on the above, an award of $160,475.85, representing
$158,435.50 in attorney fees and $2,040.35 in costs, is
reasonable and appropriate.
As a consequence of the Flamm assignment, the School would be
entitled to retain any additional award of attorney fees it might
be directed to pay to Flamm for his representation of the
plaintiffs. Therefore, the Flamm application is moot and should
For the reasons set forth above, I recommend that the
plaintiffs be granted $160,475.85: attorney fees in the amount of
$158,435.50, and costs in the amount of $2,040.35. I recommend further that the Flamm application be denied.
V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See also
Fed.R.Civ.P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable P. Kevin
Castel, 500 Pearl Street, Room 2260, New York, New York 10007,
and to the chambers of the undersigned, 40 Centre Street, Room
540, New York, New York 10007. Any requests for an extension of
time for filing objections must be directed to Judge Castel.
FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A
WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See
Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund
v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair
Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson,
714 F.2d 234, 237-38 (2d Cir. 1983).