Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wise v. Kelly

January 31, 2008


The opinion of the court was delivered by: Theodore H. Katz, U.S.D.J.




This matter was referred to this Court for Reports and Recommendations on two motions for attorneys' fees filed by Plaintiffs in this case. The first motion, filed on June 21, 2007 (Docket Entry ("DE") 98), stems from the District Court's May 31, 2007 Opinion and Order, see Brown v. Kelly, No. 05 Civ. 5442 (SAS), 2007 WL 1573957 (S.D.N.Y. May 31, 2007), which denied Plaintiff Michael Brown's motion for an order adjudging Defendants to be in contempt, but awarded Plaintiff reasonable costs and fees incurred with respect to the motion. This motion for fees will be referred to herein as the Contempt Motion. The second motion, filed on July 23, 2007 (DE 109), is based on Defendants' November 9, 2006 Offer of Judgment to former Plaintiff Eddie Wise, pursuant to Federal Rule of Civil Procedure 68, which Wise accepted. The Offer of Judgment included a provision agreeing to pay Wise his reasonable attorneys' fees, costs, and expenses up to the date of the Offer. This second motion will be referred to herein as the Rule 68 Motion.

Defendant does not dispute Plaintiffs' entitlement to fees in connection with either motion; the issue in both motions is only the appropriate amount to which Plaintiffs are entitled. The parties have asked the Court to consolidate its ruling on the Contempt Motion and the Rule 68 Motion because, although they are based on different events, many of Defendants' arguments relate to such things as hourly rates and billing practices and are, therefore, directed at both motions. In accordance with the parties' joint request, the Court will address the motions jointly to the extent feasible.


At issue in this case is the continued enforcement of an anti-begging statute, New York Penal Law § 240.35(1), which the Second Circuit declared unconstitutional almost fifteen years ago in Loper v. New York City Police, 999 F.2d 699, 701 (2d Cir. 1993). On June 9, 2005, former Plaintiff Eddie Wise ("Wise"), a homeless man who was arrested pursuant to Section 240.35(1) multiple times from 2002 to 2005, initiated the instant action.*fn2 (See Memorandum of Law in Support of Plaintiff's [Rule 68] Motion For Attorneys' Fees ("R. 68 Mem."), at 1.) Wise filed an Order to Show Cause and Temporary Restraining Order against municipal and state defendants to, inter alia, prohibit further enforcement of Section 240.35(1). Shortly thereafter, the Municipal Defendants entered into a stipulation -which was "So Ordered" by the District Court on June 23, 2005 - in which they agreed to take steps to prevent future enforcement of Section 240.35(1). Nevertheless, notwithstanding the clear mandates of Loper and the District Court's June 23, 2005 Order, enforcement of the statute continued.

During the course of hotly-contested pretrial discovery, in January 2006, Plaintiff Wise settled his claims against the New York State Defendants. As part of that settlement agreement, the Office of Court Administration ("OCA") was subpoenaed to provide critical enforcement-related tracking information to Plaintiff. According to Plaintiff, this information was essential to his case because the Municipal Defendants did not maintain records sufficient to show the extent of the continued unlawful enforcement of Section 240.35(1). (See Reply Memorandum of Law In Further Support Of Plaintiff Eddie Wise's [Rule 68] Motion For Attorneys' Fees ("R. 68 Reply"), at 2.)*fn3 After receiving, reviewing, and processing the OCA records, Plaintiff's counsel sent a letter to the District Court in which he stated that the OCA data revealed routine and unabated enforcement of Section 240.35(1). (See Reply Declaration of Matthew D. Brinckerhoff In Further Support Of Plaintiff's [Rule 68] Motion For Attorneys' Fees ("Brinck. R. 68 Reply Decl.") ¶¶ 2-3 & Exhibit ("Ex.") AA.) In the same letter, Plaintiff's counsel indicated that he intended to file two motions:

(1) a class-certification motion pursuant to Federal Rule of Civil Procedure 23(c); and (2) a motion seeking immediate relief from the continued enforcement of Section 240.35(1), including but not limited to, an order adjudging the Municipal Defendants to be in contempt. (Id.) Plaintiff stated that he would submit a letter formally requesting a pre-motion conference for these two motions no later than November 9, 2006. (Id.)

Rule 68 Offer

On November 1, 2006, Plaintiff provided the OCA data to Defendant City of New York (the "City"). On November 9, 2006, Plaintiff Wise submitted his pre-motion letter to the District Court regarding the class certification and contempt motions he sought to file. On that same day, the City extended a Rule 68 Offer to Wise in the amount of $100,001, "plus reasonable attorneys' fees, expenses and costs to the date of this offer." (See Declaration of Matthew D. Brinckerhoff In Support Of Plaintiff's [Rule 68] Motion For Attorneys' Fees ("Brinck. R. 68 Decl.") ¶¶ 27-29 & Exs. K & L.) On November 22, 2006, Plaintiff Wise accepted Defendant City of New York's Rule 68 Offer. (Id., Ex. M.) On November 27, 2006, Plaintiff Wise and newly-added Plaintiff Michael Brown ("Brown"), on behalf of themselves and others similarly situated, filed a First Amended Class Action Complaint. (See DE 50.) On December 5, 2006, the District Court entered Judgment for Wise and against the City, consistent with the Rule 68 Offer, and Wise's participation as a Plaintiff in the case came to an end. (Id., Ex. N.)*fn4

Contempt Motion

On February 2, 2007, Plaintiff Brown filed a Motion to Amend the Complaint and for Class Certification.*fn5 On March 30, 2007, Brown filed a Motion for Contempt against the City and New York City Police Department ("NYPD") Commissioner Raymond W. Kelly (hereinafter "Municipal Defendants") for their continued enforcement of Section 240.35(1). Despite unambiguous mandates to cease enforcement from more than one federal court, the District Court ultimately found Defendants' past conduct in enforcing Section 240.35(1) "contumacious," but declined to find Defendants in contempt because at some point in December, 2006, it appeared that Defendants began to make a proactive effort to end enforcement of the statute. See Brown, 2007 WL 1573957 at *4-6. Nevertheless, because the District Court believed that, absent Plaintiff's "persistence in monitoring and investigating the continued enforcement of section 240.35(1), defendants' noncompliance would have continued indefinitely," the court awarded Plaintiff "reasonable costs and attorneys' fees for its efforts with respect to this motion." Id. at *6. The court ordered Plaintiff to submit a fee application, which he did on June 21, 2007.

The District Court referred both of Plaintiffs' motions -- the Contempt Motion and the Rule 68 Motion -- to this Court for Reports and Recommendations. Again, there is no dispute about whether Plaintiffs are entitled to fees pursuant to the May 31, 2007 Opinion or the Rule 68 Judgment; the only question before the Court is the appropriate amount to which Plaintiffs are entitled.*fn6


There has been an extensive amount of briefing on these two motions. It would be an understatement to say that Defendants have critically scrutinized every detail of Plaintiffs' counsel's billing records. In fact, Defendants are so critical of Plaintiffs' bills in connection with the Rule 68 Motion, that they ask the Court to award Plaintiff Wise no more than $15,000 of the $366,375.87 in fees and costs he seeks (a figure which does not include fees and costs for time spent in preparing the motion). (See id. at 22.)*fn7 As set forth below, Defendants do identify a limited number of fee entries that should be reduced or eliminated, but this Court believes that the bulk of Plaintiffs' fee requests are reasonable and appropriate.

I. Legal Standard

Traditionally, in order to resolve fee applications, district courts were required to "calculate a lodestar figure based upon the number of hours reasonably expended by counsel on the litigation multiplied by a reasonable hourly rate." Reiter v. MTA New York City Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006) (citing Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939 (1989)). There was then a "strong presumption" that the lodestar figure was the reasonable fee, but it could be adjusted upward or downward in the district court's discretion based on considerations such as the difficulty of the case or the results obtained. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998) (citing Hensley v. Eckerhart, 461 U. S. 424, 434, 103 S.Ct. 1933 (1983)); Grant v. Martinez, 973 F.2d 96, 101 (2d Cir. 1992).

Earlier this year, however, the Second Circuit expressed dissatisfaction with the lodestar metaphor and held that the "the better course - and the one most consistent with attorney's fees jurisprudence - is for the district court, in exercising its considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, 117 (2d Cir. 2007).*fn8 In setting the reasonable hourly rate, the district court should consider, inter alia, the following factors:

[T]he complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether the attorney had an interest (independent of that of his client) in achieving the ends of the litigation or initiated the representation himself, whether the attorney was initially acting pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) the attorney expected from the representation.

Id. at 112. The reasonable hourly rate -- i.e., the "rate a paying client would be willing to pay" --- produced by this exercise is then used to calculate "the presumptively reasonable fee." Id. at 118. In short, Arbor Hill instructs district courts to analyze all case-specific variables in arriving at the reasonable hourly rate, as opposed to performing that analysis after arriving at the lodestar. Id. at 117-18.

Arbor Hill did not, however, do away with all of the traditional factors courts consider in the context of fee applications. In arriving at a reasonable hourly rate, courts continue to consider the prevailing rates in the community for similar services by lawyers with comparable skill, experience, and reputation. See Blum v. Stenson, 465 U.S. 886, 895 & n.11, 104 S.Ct. 1541, 1547 & n.11 (1984); Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998). The community the district court should consider to determine the lodestar is "'the district in which the court sits.'" Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997) (quoting Polk v. New York State Dep't of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983)). In deciding what reasonable rates are in the community, the court may rely upon its own knowledge of private firm hourly rates, see Miele v. New York State Teamsters Conf. Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987); Santa Fe Natural Tobacco, 2002 WL 498631, at *3, and may take judicial notice of a law firm's "reputation for high quality work." Kahn v. Gen. Motors Corp., No. 88 Civ. 2982 (PNL), 1992 WL 208286 (S.D.N.Y. Aug. 14, 1992). Additionally, to determine whether time was reasonably spent, the court must evaluate the tasks and the time documented in counsel's contemporaneous time records in light of its general experience and its experience with the case. See Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992); New York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1146-48 (2d Cir. 1983); Santa Fe Natural Tobacco Co. v. Spitzer, Nos. 00 Civ. 7274 (LAP), 00 Civ. 7750 (LAP), 2002 WL 498631, at *3 (S.D.N.Y. Mar. 29, 2002).

A fee application must be supported by contemporaneous time records that "specify, for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, 711 F.2d at 1148. If the court finds that the fee applicant's claim is excessive or insufficiently documented, or that time spent was wasteful or redundant, the court may decrease the award, either by eliminating compensation for unreasonable hours or by making across-the-board percentage cuts in the total hours for which reimbursement is sought. See Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40; Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998); New York State Ass'n for Retarded Children, 711 F.2d at 1146.

There are a few other considerations that warrant attention in connection with the specific motions at bar. First, the reasonable hourly rate analysis for attorneys from non-profit organizations, and attorneys from private law firms doing pro bono work, is the same as it is for other attorneys. Arbor Hill, 493 F.3d at 112. For all kinds of attorneys, the goal is simply to arrive at a number that a "reasonable, paying client would expect to pay." Id. Second, there is a strong presumption that the lodestar figure (or functional equivalent thereof after Arbor Hill) represents a reasonable fee in civil rights actions because "if private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court." LeBlanc-Sternberg, 143 F.3d at 764 (quoting Orchano v. Advanced Recovery, Inc. 107 F.3d 94, 99 (2d Cir. 1997)); cf. City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S. Ct 2686, 2694 (1986) ("a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damages awards").

Finally, and perhaps most importantly here, it is well-established that, in reviewing voluminous fee applications, it is unrealistic to expect courts to "evaluate and rule on every entry in an application." New York State Ass'n for Retarded Children, 711 F.2d at 1146; see also Betancourt v. Giuliani, 325 F. Supp. 2d 330, 334 (S.D.N.Y. 2004); S.W. ex rel. N.W. v. Bd. of Educ. of City of New York (Dist. Two), 257 F. Supp. 2d 600, 606 (S.D.N.Y. 2003). Along these same lines, the Supreme Court has cautioned that "a request for attorneys' fees should not turn into a second major litigation." Buckhannon Bd. & Care Home, Inc. v. W. Virgina Dep't Of Health & Human Res., 532 U.S. 598, 609, 121 S.Ct. 1835 (2001) (quoting Hensley, 461 U. S. at 437).

II. Application

Plaintiff Brown seeks a total of $73,644.50 in fees in connection with his Contempt Motion, and Plaintiff Wise seeks a total of $354,647.00 in fees, and $11,728.87 in costs, in connection with his Rule 68 Motion. Both Plaintiffs are also requesting interest on those amounts, and the fees and costs that their counsel reasonably expended on the motions themselves, which have not yet been submitted to the Court. As stated previously, Defendants make many of the same arguments in their responses to both motions as to why the requested fees are unreasonable. This Court will first address arguments directed at both motions, and then proceed to resolve any remaining issues on the individual motions.

A. Arguments Directed At Both Motions

1. Hourly Rates Of The Three Main Attorneys

Defendants' lead argument in their responses to both motions is that the hourly rates sought by Plaintiffs' attorneys and support staff in this case are unreasonable. Plaintiffs in this case have been represented primarily by the following three attorneys: Matthew Brinckerhoff ("Brinckerhoff") from the firm of Emery Celli Brinckerhoff and Abady ("ECBA"); Katherine Rosenfeld ("Rosenfeld") from ECBA; and J. McGregor Smyth ("Smyth") from The Bronx Defenders. To put the amount of work that these three attorneys have done in perspective, they generated close to 94% of the aggregate fees for which Plaintiffs seek compensation (all of the $73,644.50 sought in the Contempt Motion and $327,178.25 of the $354,647.00 sought in the Rule 68 Motion).*fn9

In order to assess whether the hourly rates sought by these attorneys are reasonable, it is first necessary to briefly review their backgrounds and experience. See Blum, 465 U.S. at 895 & n.11; Gierlinger, 160 F.3d at 882. Brinckerhoff graduated from New York University School of Law in 1990. (See Brinck. R. 68 Decl., Ex. P.) A founding partner of ECBA, Bricnkerhoff has a "diverse general, commercial, and civil rights litigation practice," but he focuses on "representing individuals and not-for-profit corporations in First Amendment, police misconduct, discrimination, voting rights, and government contracting cases." (Id.) He has had extensive experience over the course of his career litigating civil rights cases against governmental entities, and obtained a $50 million dollar settlement against the City of New York on behalf of a class of 60,000 people. (Id.) Plaintiffs seek compensation for Brinckerhoff's work in this case at a rate of $450 per hour, a rate that is his "current hourly rate paid by fee-paying clients, including those raising civil rights claims." (Brinck. R. 68 Decl. ¶ 39.) Brinckerhoff avers that, based on his firm's research into legal rates charged by similar types of firms, he believes his rate, along with Rosenfeld's rate, are comparable to "the general level of hourly rates charged by other small to medium-sized New York City firms for general civil litigation." (Id. ¶ 40.) And at least three attorneys practicing in this district, with experience in civil rights litigation, also believe that Brinckerhoff's and Rosenfeld's rates are reasonable and appropriate for lawyers with their background and skill. (See Brinck. R. 68 Decl., Ex. T (Declaration of Robert L. Herbst ("Herbst Decl.")); Ex. U (Declaration of Lee Bantle ("Bantle Decl.")); and Ex. V (Declaration of Nick J. Brustin ("Brustin Decl.")).)

Rosenfeld graduated from Yale Law School in 2001. (See Brinck. R. 68 Decl., Ex. Q.) After completing a clerkship in the Central District of California in 2002, Rosenfeld was an associate at a local civil rights firm for two years. (See id.) She joined ECBA in December, 2004. (See id.) Her resumé indicates that she "litigates civil rights cases involving prisoners' rights, police misconduct, employment discrimination, wrongful death, and First Amendment - and commercial cases." (Id.) Plaintiffs seek compensation for Rosenfeld's work in this case at a rate of $325 per hour, a rate that is her "current hourly rate paid by fee-paying clients, including those raising civil rights claims." (Brinck. R. 68 Decl. ¶ 39.)

Smyth graduated from Yale Law School in 1999. (See J. McGregor Smyth, Jr.'s Declaration In Support of Plaintiff's [Rule 68] Motion For Attorney's Fees ("Smyth R. 68 Decl."), ¶ 6.) Smyth is the founder and Managing Attorney of the Civil Practice at The Bronx Defenders, "a law office with a staff of 40 attorneys, 28 investigators, social workers and support staff," which "specializes in comprehensive litigation to safeguard the civil rights of indigent New Yorkers charged with crimes." (Id. ¶¶ 6-7, 12.) Even though Smyth is two years Rosenfeld's senior in terms of experience, Plaintiffs seek compensation for Smyth's work at the same rate as Rosenfeld - $325 per hour - because the overhead costs at The Bronx Defenders are less than those at ECBA. (See Brinck. R. 68 Decl. ¶ 46.)

In their response to the Contempt Motion and, later, the Rule 68 Motion, Defendants argue that these rates must be "significantly reduced" - to $250 per hour for Brinckerhoff and $200 per hour for Rosenfeld and Smyth - in order to "accurately reflect the prevailing rate in the civil rights litigation community who operate in small firms and public defender organizations." (R. 68 Resp., at 11; see also Defendants' Memorandum Of Law In Opposition To Plaintiff's [Contempt] Motion For Attorneys' Fees ("Cont. Resp."), at 2-4.) Defendants do not submit independent evidence indicating that the rates Plaintiffs request for these three attorneys are unreasonable. Instead, Defendants rely primarily on two cases for their position, both of which are readily distinguishable.*fn10

The first case Defendants rely on is Saunders v. Salvation Army, No. 06 Civ. 2980 (SAS), 2007 WL 927529 (S.D.N.Y. Mar. 27, 2007). In that case, following a settlement that allowed the plaintiffs to move for recovery of their attorneys' fees and costs, the plaintiffs requested fees for their attorneys - two individuals at the Anti-Discrimination Center of Metro New York (the "Center"). The attorneys had forty-three and twenty-two years of experience, respectively, and requested compensation at the rates of $450/hour and $400/hour. Id. at *2. The court found those rates to be excessive, and reduced them to $300/hour for both attorneys. Id. The basis for the court's reduction is not, however, directly applicable here. The court held that the Center had "employed one or two attorneys at most since its inception" and that it did "not pay rent for its office space which is donated by a large firm." Id. at 3. Consequently, the court reasoned, the "rates charged by its employees cannot approximate those charged by attorneys in large New York City law firms." Id.*fn11

ECBA is, obviously, quite different than the Center. Among other things, ECBA is a private firm that employs fourteen attorneys and pays for its office space at 75 Rockefeller Center. In addition to civil rights litigation, it also has a commercial practice. This Court may also take judicial notice of ECBA's high reputation, see, e.g., Kahn, 1992 WL 208286 at *3, finding it to be one of the most competent, successful, and reputable civil rights firms practicing in this Court.*fn12 Moreover, this Court also takes note that the instant case has been considerably more difficult and complex than the average civil rights case. See Santa Fe, 2002 WL 498631 at *4-5. For example, Saunders involved two plaintiffs asserting individual claims under the Fair Housing Act; this case, in contrast, has always been a putative class action -- with a Monell claim -- challenging city-wide enforcement practices. For these reasons, this Court finds the rate reductions in Saunders to be of limited applicability here.

Similarly distinguishable is the second case Defendants rely on, Tlacoapa v. Carregal, 386 F. Supp. 2d 362 (S.D.N.Y. 2005). There, following entry of judgment in the plaintiff's favor on his straightforward individual claim under the Fair Labor Standards Act ("FLSA"), the plaintiff moved, as the prevailing party, for her attorneys' fees. The plaintiff requested rates of $375 per hour for an attorney with twenty years of experience, $300 per hour for an attorney with nine years of experience, and $200 per hour for an attorney with three years of experience. Id. at 369. The court found these rates to be excessive and reduced them to $250 per hour, $200 per hour, and $125 per hour, respectively. Id. at 370. The reasoning behind the court's decision, however -- that the attorneys were members of a firm with only three full-time attorneys -- mirrors the reasoning in Saunders, and is, for the reasons stated above, of limited applicability here.*fn13

a. Rates For Brinckerhoff & Rosenfeld

Notwithstanding the foregoing, this Court does believe that Plaintiffs have not met their burden of establishing that the rates of $450 per hour for Brinckerhoff and $325 per hour for Rosenfeld are entirely appropriate and reasonable. The lead case that Plaintiffs rely on to support these rates, Heng Chan v. Sung Yue Tung Corp., No. 03 Civ. 6048 (GEL), 2007 WL 1373118 (S.D.N.Y. May 8, 2007), is almost as distinguishable as the cases on which Defendants rely. In that case, also under the FLSA, the plaintiffs moved for their attorneys' fees following a trial and damages award in their favor. The plaintiffs were represented in the case, pro bono, by the firm of Skadden, Arps, Slate, Meagher and Flom LLP ("Skadden"), one of the largest law firms in New York, and, for that matter, the world. In granting the plaintiffs' requested rates of $450/hour for the lead partner with sixteen years of experience, $300/hour for sixth-year associates, and $200/hour for a second-year associate (all of which were "substantially discount[ed]" from their normal billing rates for purposes of the fee application), the court expressly relied on Skadden's size. Id. at *3 (Based on "[t]he institutional resources of a large firm such as Skadden, with the higher overhead and other costs that go with them . . . it is appropriate to award a relatively high hourly rate.").*fn14

As different as ECBA is from a one to three-person firm or nonprofit entity, so, too, is it different from a firm like Skadden. Consequently, even though this Court has the highest regard for the abilities of the ECBA attorneys in this case, they simply do not warrant the same ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.