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Fabbricante v. City of New York

September 5, 2006

JOHN J. FABBRICANTE, PLAINTIFF,
v.
THE CITY OF NEW YORK, ROY KATZ, AND JOSEPH MASTROPIETRO, JOHN SCUPELLITI, ANTHONY BIANCHIO, BERNARD GELMAN, JAMES CAMPBELL, DANNIEL WALLEN, JAMES NICKOL, ALBERT SOMMA INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AND ALL THOSE ACTING IN CONCERT WITH THEM, DEFENDANTS.



The opinion of the court was delivered by: Levy, United States Magistrate Judge

MEMORANDUM AND ORDER

On December 19, 2005, the parties stipulated to a settlement in this case. In the stipulation, they agreed that the court would retain jurisdiction over the matter for purposes of ruling on plaintiff's attorney's fee application. On March 1, 2006, the parties consented to have me decide plaintiff's application for attorney's fees and costs.*fn1 For the reasons stated below, plaintiff's motion for attorney's fees is granted and plaintiff is awarded $150,389.77 in attorney's fees and $6,414.23 in costs.

BACKGROUND

The facts of this case were described in detail in Judge Sifton's Memorandum and Order dated November 12, 2002, familiarity with which is assumed. Briefly, plaintiff has been employed as a civil servant for the City of New York since 1981. (See Memorandum and Order, dated Nov. 12, 2002 ("Order"), at 2.)*fn2 From 1986 through 1990, plaintiff was an electrician in the Bureau of Fire Communications of the New York City Fire Department ("Fire Department"). (Id. at 2-3; see also Third Amended Complaint, dated Nov. 7, 2003 ("Amended Compl."), ¶ 40.) From 1990 to the present, plaintiff has worked as an electrician for the Buildings Maintenance Division of the Fire Department. (Order at 3.)In 1994, the Buildings Maintenance Division took on all electrical responsibility for the Fire Department. (Id.)

Plaintiff has been a licensed master electrician since 1991. (Id.) In the event of a power failure, "brown out," "black out" or equipment malfunction, plaintiff has been responsible for ensuring that the loss of power does not disrupt communication within the Fire Department and will not impede the dispatch of fire equipment to the scene of an emergency. (Id.) Plaintiff has worked on light, heat and power in the communications offices. (Id.) He has also worked with diesel generators and battery back-up systems, which were designed to maintain power in the intervals between power failures and emergency electrical power generation. (Id.) Further, plaintiff has been responsible for testing and maintaining the "computer assisted dispatch system" and related equipment, such as voice alarms and alert tones. (Id. at 4.) He has maintained and tested the light and power for the tele-printer, voice alarms, still alarm bells, firehouse speakers, and intercom systems. He has also relocated and installed various wires, panels and communications equipment. (Id.) According to Judge Sifton's Memorandum and Order, plaintiff "is considered by his peers to be a dedicated and hard worker and a valuable employee." (Id. at 3.)

Beginning in the mid-1990's, plaintiff began reporting problems with the Fire Department's back-up power system that is used to communicate with Fire Department dispatchers in the event of an emergency and power failure. (Id. at 7-8; see also Plaintiff's Application and Declaration For Attorney's Fees, Costs and Expenses and Memorandum of Law in Support, dated Jan. 20, 2006 ("Solotoff Decl."), ¶ 5.) As a result of his whistleblowing activity, defendants allegedly treated plaintiff with malice, animosity, discrimination, harassment and retaliation, and created a hostile and offensive work environment. (Solotoff Decl. ¶ 7.)

In 1996, plaintiff filed six Office of Collective Bargaining ("OCB") petitions concerning, among other things, whistleblower claims; the safety of the back-up power system; the denial of overtime, assignments and promotions; and harassment related to his whistleblowing activity. (Order at 9.) More specifically, the OCB proceedings related to plaintiff's rights under the New York City Collective Bargaining Law ("NYCCBL"). Some of his petitions were directed at the International Brotherhood of Electrical Workers, Local 3 (the "Union"), and some were directed at the Fire Department. With respect to the Fire Department, plaintiff alleged that the Fire Department's agents: (1) interfered with his efforts to pursue grievances relating to overtime, including a refusal to accept his grievances; (2) leaked plaintiff's overtime complaints to other employees who might be adversely affected by plaintiff's grievances; (3) belittled plaintiff; and (4) discriminated and retaliated against plaintiff because of his grievance activity and his filing of improper practice petitions challenging FDNY's actions. (See OCB Decision and Order, attached as Ex. C to Solotoff Decl. ("OCB Order"), at 17.) Further, Fire Department supervisors allegedly: (1) threatened disciplinary procedures; (2) docked plaintiff's pay for time he spent related to filing grievances and improper practice claims; (3) failed to consider his applications for supervisory positions; and (4) rejected plaintiff's continuing demand for equalization of overtime assignments. (Id. at 17-18.)

In 1998, plaintiff retained the law firm of Solotoff & Solotoff. (Solotoff Decl. ¶ 19.) Plaintiff filed the Complaint in this case on August 17, 2001; an Amended Complaint on September 18, 2001; a Second Amended Complaint on December 17, 2002; and a Third Amended Complaint on November 23, 2003. (Id.) In the initial complaint, plaintiff alleged that, because of his whistleblowing activity, he was (1) passed over for desirable positions, (2) physically threatened, (3) denied desirable assignments, (4) required to work with defective equipment, (5) denied transfers, and (6) falsely accused of wrongs he did not commit. (Order at 10-12.) Defendants filed a motion for partial dismissal on January 4, 2002. Judge Sifton dismissed all claims against the Fire Department on consent, and dismissed plaintiff's due process claim under 42 U.S.C. § 1983; his conspiracy claim under 42 U.S.C. § 1985; his conspiracy claim under 42 U.S.C. § 1986; his New York City whistleblower claim; and his claim of negligence. (Id. at 50-51.) Judge Sifton allowed all other claims to proceed. Plaintiff's Third Amended Complaint alleged violations of 42 U.S.C. § 1983 (discrimination, retaliation, free speech, due process, and equal protection violations); 42 U.S.C. § 1985; 42 U.S.C. § 1986; and the New York State whistleblower statute; as well as tortious interference with employment; intentional infliction of emotional distress; and retaliation in response to the filing of this lawsuit, beginning in August 2001. (Amended Compl. ¶¶ 166-262.) Roy Katz was the Assistant Commissioner of the Fire Department and Joseph Mastropietro has been the Director of the Fire Department's Buildings Maintenance Division since the inception of this case. (Id. ¶¶ 15, 21.) John Scupelliti, Anthony Bianchino, Bernard Gelman, James Campbell, Danniel Wallen and Albert Somma were and are officers, managers, supervisors, stewards and personnel with the Fire Department.

According to plaintiff, defendants violated his civil rights throughout the OCB proceedings; thus, the basis for his allegations in the complaint stem from occurrences before and particularly during those proceedings. (Solotoff Decl. ¶ 11; see also Order at 10.) On October 30, 2003, the OCB found that the Fire Department and the Union illegally discriminated and retaliated against plaintiff and issued a Cease and Desist Order. After the parties settled this case in 2005, they stipulated that plaintiff is a "prevailing party" and is entitled to a fee award. (Solotoff Decl. ¶ 33.)

Plaintiff seeks attorney's fees for representation of his interests during all the proceedings had herein, which, according to plaintiff, include the administrative proceedings and the federal lawsuit. Plaintiff seeks $394,368.75 in attorney's fees, and $15,788.42 for costs, as well as a fee enhancement and post-settlement interest at the rate of 9% per annum. (Id. at 37.)*fn3

Defendants object to plaintiff's application on a number of grounds, arguing: (1) plaintiff's attorneys have not demonstrated the reasonableness of their proposed hourly rates; (2) the hours billed by plaintiff's attorneys are excessive; (3) the costs billed by plaintiff's attorneys are excessive; (4) plaintiff is not entitled to recover fees incurred in connection with his administrative claims; and (5) plaintiff is not entitled to the requested fee enhancement or to post-settlement interest. (See Defendants' Memorandum of Law In Opposition to Plaintiff's Application for Attorney's Fees and Expenses, dated Feb. 24, 2006 ("Defs.' Mem.").)

DISCUSSION

"The calculation of reasonable attorney's fees is a factual issue whose resolution is committed to the discretion of the district court." Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 145 (2d Cir. 1993). The rationale is that "[t]he trial judge is in a better position than an appellate court to appraise the need for and potential benefits derived from the attorney's services . . . ." Rosario v. Almagamated Garment Cutters' Union, 749 F.2d 1000, 1004 (2d Cir. 1984).

In the Second Circuit, applications for attorney's fees must be supported by contemporaneous time records specifying relevant dates, time spent and work done. See Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994); Lewis v. Coughlin, 801 F.2d 570, 577 (2d Cir. 1986); New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). In determining reasonable attorney's fees, the court calculates a "lodestar" figure "by multiplying 'all reasonable hours expended by the prevailing party's attorney by a reasonable hourly rate.'" Bourgal v. Atlas Transit Mix Corp., 93 CV 0569, 1996 WL 75290, at *6 (E.D.N.Y. Feb. 7, 1996) (quoting Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992); DeFilippo v. Morizio, 759 F.2d 231, 234 (2d Cir. 1985)).

The United States Supreme Court has noted that courts may consider the following factors in making a fee determination: "(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 v. Eckerhart, 461 U.S. 424, 430 n. 3 (1983) (citation omitted).

A. Hourly Rate

Courts determine the reasonable hourly rate by looking to the hourly rate "'prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.'" Bourgal v. Atlas Transit Mix Corp., No. 93-CV-569, 1996 WL 75290, at *6 (E.D.N.Y. Feb. 7, 1996) (quoting Miele v. New York State Teamsters Conf. Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987)). Determination of the prevailing market rates may be based on evidence presented or a judge's own knowledge of hourly rates charged in the community. Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir. 1989).

Plaintiff's counsel maintains an office in Great Neck, New York, which is in this judicial district. According to one recent case, "prevailing rates [in the Eastern District of New York] have ranged from $200-$300 for partners, $200-$250 for senior associates and $100-$150 for junior associates." Morin v. Nu-Way Plastering, Inc., No. CV 03-405 (LDW)(ARL), 2005 WL 3470371, at *2 (E.D.N.Y. Dec. 19, 2005). See also LaBarbera v. J.E.T. Resources, Inc., 396 F. Supp. 2d 346, 353 (E.D.N.Y. 2005) ("the reasonable rate for legal services in the Eastern District in 2005 would appear to be approximately $250 for partners, $150 for associates, and $60 for paralegals per hour."); Atlantic Recording Corp v. Elizabeth Records, Inc., 05 CV 2309 (SLT), 2006 WL 1027151, at *1 (E.D.N.Y. Apr. 14, 2006) (awarding $250 for a partner and $150 for an associate, and noting that "courts in this district have not been as generous as courts in the Southern District of New York.").*fn4

Even in the Southern District of New York, courts are reluctant to award over $400 per hour for experienced partners. See Trustees of the Eastern States Health and Welfare Fund v. Crystal Art Corp., No. 00 Civ. 0887, 2004 WL 1118245, at *6 (S.D.N.Y. May 19, 2004) (approving $350 per hour for named partner with approximately thirty years of litigation experience); Veltri v. Building Serv. 32B-J Pension Fund, No. 02 Civ. 4200, 2004 WL 856329, at *4 (S.D.N.Y. Apr. 20, 2004) (approving hourly rate of $325); I.L.G.W.U. Nat'l Retirement Fund v. ESI Group, Inc., No. 92 Civ. 0597, 2003 WL 135797, at *3 (S.D.N.Y. Jan. 17, 2003) (approving rate of $350 per hour for partner with over twenty years of experience, where work was first rate).

Plaintiff retained Solotoff & Solotoff in 1998 on an agreed hourly rate of $325 for partners, and $250 for associates, subject to annual rate adjustments. (Id. ¶ 31.) Lawrence Solotoff's rate ranged from $325 per hour in 1998 to $450 per hour in 2005. (Id., Ex. D.) Cheryl Solotoff's rate has remained at $375 per hour since 2001, while associate Darryn Solotoff's rate is $150 per hour. The plaintiff is, and always remains, obligated to pay attorney's fees for services rendered on his behalf. (Id. ¶ 32.) I find Lawrence and Cheryl Solotoff's hourly rates excessive in light of the prevailing hourly rates in the Eastern District of New York.*fn5

Lawrence Solotoff is a partner with the law firm of Solotoff & Solotoff and has been in practice for over 32 years. (Solotoff Decl. ¶ 72.) He is an adjunct professor of law at Touro Law School and has published a treatise on sex discrimination in the workplace as well as a number of other employment law articles. (Id. ¶ 75.) He has extensive experience in employment litigation and has chaired or co-chaired a number of labor and employment law committees over the past twelve years. (Id. ¶¶ 76-77.) Considering that Mr. Solotoff has worked diligently on this case for over seven years, I find that he is entitled to be compensated at a rate of $325 per hour for work beginning in 1998. See Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (finding that where the services are 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).

Cheryl Solotoff is a partner in the law firm of Solotoff & Solotoff and has been in practice for over 18 years. (Solotoff Decl. ¶ 71.) She has represented a variety of clients that include "corporations, partnerships, developers and individuals in business transactions." (Id.) Although she acted as co-counsel in some of the firms' labor and employment cases, it is unclear from plaintiff's submission whether Ms. Solotoff has a background in labor and employment law. Additionally, she did not act as lead counsel in the numerous proceedings before this court. I find that she is entitled to be compensated at a rate of $225 per hour for work beginning in 2001. Darryn Solotoff is an associate of counsel to the law firm of Solotoff & Solotoff and has been in practice for approximately one year. (Id.) He was admitted to practice law in the State of New York in 2005. Considering that he was admitted to the bar only a few months prior to performing research in this case, I find that he is entitled to be compensated at a rate of $100 per hour. See Morin, 2005 WL 3470371, at *2 (finding $100 to $150 a reasonable amount for junior associates).

B. Excessive Hours

According to the Supreme Court, the district court should exclude from the initial fee calculation hours that were not "reasonably expended." Hensley, 461 U.S. at 434. "Counsel for the prevailing party should make a good-faith effort to exclude from a fee request ...


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