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Robinson v. City of New York

September 29, 2009


The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge*fn1


Plaintiffs petition pursuant to 42 U.S.C. § 1988 for an award of attorneys' fees and expenses in connection with an employment discrimination action alleging race discrimination and retaliation that resulted in a fourteen-day trial, after which the jury returned a verdict in favor of seven of the nine plaintiffs with respect to certain of their claims of retaliation, and in favor of the defendants with respect to the balance of plaintiffs' claims. Defendants challenge almost every aspect of plaintiffs' application, arguing that the fees are excessive on a number of grounds, both in the rates charged and the hours expended, and that plaintiffs' request for costs should be denied or substantially reduced because they are excessive or unwarranted. Defendants further argue that the fee award should be reduced both because the claims on which plaintiffs succeeded were unrelated to their other claims, and because the overall degree of success was limited. For the following reasons, plaintiffs' motion will be granted to the extent set forth below.


The plaintiffs are eight active police officers and one retired officer who worked during the relevant time period, in Transit District 4 of the New York City Police Department. In 2005, the plaintiffs brought suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended, 42 U.S.C. §§ 1981 and 1983, and the laws of New York, claiming that the defendants discriminated against them on the basis of their race and color and then retaliated against them after they filed charges of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") and complained internally to the NYPD's Office of Equal Employment Opportunity ("OEEO").

Specifically, plaintiffs claimed that defendant Ernest Van Glahn, the former captain of Transit District 4, discriminated and retaliated against them by denying them voluntary overtime and paid detail assignments, causing them to fail performance evaluations and to be placed into Performance Monitoring, and denying them favorable posts and assignments, among other allegedly adverse actions. Plaintiffs also claimed that defendant Deputy Inspector Donna Jones, then head of the Employee Management Division and the Performance Monitoring Program, condoned Van Glahn's discriminatory and retaliatory placement of placement of plaintiffs into Performance Monitoring and failed to take any independent action to ensure that Van Glahn's placement of the plaintiffs into the program was objectively justifiable.*fn2 Plaintiffs also alleged that the racially discriminatory and retaliatory conduct -- including the denial of voluntary overtime and paid detail assignments as well as the adverse performance evaluations and discipline -- continued after Van Glahn left the command in November of 2004, under a series of commanding officers, until the date of trial. Consistent with these allegations, plaintiffs contended that between 2003 and the date of trial, black and Hispanic officers were assigned less desirable posts, given less overtime, and evaluated less favorably than white officers in the command.

From 2005 through 2008, the parties engaged in a protracted and contentious period of discovery, which required numerous court conferences and resulted in several discovery orders. The trial began on June 1, 2009. On June 25, 2009, the jury returned a verdict for the plaintiffs only with respect to their claims of retaliation by Van Glahn. The jury returned a verdict in favor of the defendants as to plaintiffs' remaining claims of race discrimination, denial of overtime, and all claims following Van Glahn's departure from the command. The jury also returned a verdict in favor of Donna Jones on all of the plaintiffs' claims against her. On July 15, 2009, plaintiffs moved for permanent injunctive relief consistent with the jury's verdict, which the Court granted on August 11, 2009.

Plaintiffs have been represented throughout this litigation by the law firm McLaughlin & Stern, and by Norman Siegel. The main fee application seeks $963,821.60 in fees for McLaughlin & Stern and $153,270 for Siegel, and costs in the amount of $131,019.88.*fn3 In addition, plaintiffs seek attorneys' fees in the amount of $101,412 for McLaughlin & Stern and $7,537.50 for Siegel and costs in the amount of $1,880.07, in connection with the preparation of plaintiffs' fee application and the motion for injunctive relief. In total, plaintiffs request $1,226,041.10 in attorneys' fees and $132,899.95 in costs, totaling $1,358,941.05. The petition covers work done through August 17, 2009.


I. Attorneys' Fees

A. Legal Standard

In a civil rights case, a court may, in its discretion, award a "reasonable attorney's fee" to a "prevailing party." 42 U.S.C. § 1988(b); see also Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) ("[T]he district court has wide discretion in determining the amount of an attorney's fee award"). A "prevailing party" is one who "succeeds on any significant issue in litigation which achieves some of the benefit the party sought in bringing suit." Bridges v. Eastman Kodak Co., 102 F.3d 56, 58 (2d Cir. 1996). Here, there is no dispute that plaintiffs are prevailing parties because they won a verdict on some of their retaliation claims and received $235,000 in damages. Thus, the plaintiffs realized some of the benefit they sought in bringing suit. It remains, therefore, only to determine how much of a fee is "reasonable."

A "presumptively reasonable" fee can be calculated by "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).*fn4 The reasonable hourly rate reflects what a paying client would be willing to pay, and the hours "reasonably expended" are those actually expended by counsel minus "excessive, redundant, or otherwise unnecessary" hours. Id. at 434; see Arbor Hill Citizens Neighborhood Ass'n v. County of Albany ("Arbor Hill II"), 522 F.3d 182, 183 (2d Cir. 2008) (substituting the terminology "presumptively reasonable fee" for the older "lodestar" terminology, although the methodology of calculating the fee remains substantially the same).

Following the determination of the presumptively reasonable fee, the court must then consider whether an upward or downward adjustment of the fee is warranted based on factors such as the extent of plaintiff's success in the litigation. See Hensley, 461 U.S. at 434 & n. 9. While work on ultimately unsuccessful claims is compensable, so long as the "plaintiff's unsuccessful claims are not 'wholly unrelated' to the plaintiff's successful claims," Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994), quoting Grant, 973 F.2d at 101, a downward adjustment may nevertheless be appropriate when plaintiff "succeeded on only some of his claims for relief," Hensley, 461 U.S. at 434. The Court need not, however, "become enmeshed in a meticulous analysis of every detailed facet of the professional representation" in crafting a fee award. Seigal v. Merrick, 619 F.2d 160, 164 n. 8 (2d Cir. 1980). As the Supreme Court has indicated, "a request for attorney's fees should not result in a second major litigation." Hensley, 461 U.S. at 437. The district court is afforded broad discretion in determining a reasonable fee award based on the circumstances in the case, and the burden is on the fee applicant to submit evidence to support the number of hours expended and the rates claimed. See id.

B. Plaintiffs' Petition

Plaintiffs have submitted documentation in support of their petition for fees and expenses. Specifically, McLaughlin & Stern has provided records itemizing the hours spent on the litigation by the attorneys, paralegals, and other staff. (Hyman Decl. Ex. 2.) For each person, it has provided some biographical information and an hourly billing rate, which is the rate charged to the firm's paying clients. (Hyman Decl. ¶¶ 20-24.) Siegel has provided similar documentation in support of his fee application. (See Siegel Decl. ¶¶ 2-4; Siegel Decl. Ex. C; Siegel Suppl. Decl. Ex. B) McLaughlin & Stern has also submitted an itemized list of expenses incurred in pursuing the litigation. (Hyman Decl. Exs. 4, 5.)

In general, plaintiffs' documentation, which seeks, in total, $1,226,041.10 in attorneys' fees and $132,899.95 in costs, is sufficiently transparent to show that their fees -- with the exceptions discussed below -- are reasonable. While the award sought is substantial, it is not outlandish in light of the nature of the litigation, which was a protracted and hard-fought endeavor that culminated in a 14-day trial. Plaintiffs' counsel have also achieved a favorable outcome for their clients, notwithstanding their limited success. The jury awarded damages ranging from $15,000 to $60,000 as to seven of the nine plaintiffs. Plaintiffs also requested and received injunctive relief consistent with the jury's verdict.

Both firms began work in 2004 after eight of the nine plaintiffs approached Siegel, who then enlisted McLaughlin & Stern to share litigation costs. (Hyman Decl. ¶¶ 3-4.) The plaintiffs retained both Siegel and McLaughlin & Stern, and the complaint in this action was filed in November of 2005. (Id.)*fn5 An extensive period of discovery ensued, including the review of thousands of documents and the taking and/or defending of dozens of depositions. (Hyman Decl. ¶¶ 8-9, 18.) Consistent with the number of plaintiffs and the voluminous production of documents related to plaintiffs' claims, substantial time was devoted to trial preparation, including preparation of motions in limine, among other issues. (Hyman Decl. ¶¶ 27-28.)

C. Defendants' Objections

Defendants vigorously challenge plaintiffs' application, arguing that the hourly rates are too high, that the hours expended are excessive, and that the fee award should be reduced based on the time expended on unsuccessful claims and because the overall degree of success was limited.

1. Reasonable Hourly Rates

The reasonable hourly rate is the rate a paying client would be willing to pay. Arbor Hill II, 522 F.3d at 183. Courts are also to "bear in mind all of the case-specific variables" that contribute to what the hypothetical reasonable client would pay, with the understanding that the reasonable client "wishes to spend the minimum necessary to litigate the case effectively." Id. at 190.*fn6 A court should determine this rate by relying on both "its own knowledge of comparable rates charged by lawyers in the district," Morris v. Eversley, 343 F. Supp. 2d 234, 345 (S.D.N.Y. 2004) (citing Ramirez v. N.Y. City Off-Track Betting Corp., No. 93 Civ. 682, 1997 WL 160369, at *2 (S.D.N.Y. Apr. 3, 1997)), as well as on "evidence submitted by the parties," Farbotko v. Clinton County of N.Y., 433 F.3d 204, 209 (2d Cir. 2005). The size of the firm may also be considered as a factor in determining the hourly rate, "primarily due to varying overhead costs." Cioffi v. N.Y. Cmty. Bank, 465 F. Supp. 2d 202, 219 ...

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