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Price v. New York State Board of Elections

December 4, 2009

DAVID PRICE, AS A CANDIDATE FOR THE POSITION OF ALBANY COUNTY REPUBLICAN COMMITTEEMAN FROM THE 14TH WARD 16TH DISTRICT, CITY OF ALBANY; THE ALBANY COUNTY REPUBLICAN COMMITTEE; MARTHA MCMAHON, ABSENTEE VOTER; AND JAMES THORNTON, ABSENTEE VOTER, PLAINTIFFS,
v.
THE NEW YORK STATE BOARD OF ELECTIONS; NEIL W. KELLEHER; DOUGLAS A. KELLNER; EVELYN J. AQUILA; AND HELENA MOSES DONOHUE, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiffs David Price, the Albany County Republican Committee, Martha McMahon, and James Thornton brought the present action under 42 U.S.C. § 1983 challenging N.Y. ELEC.LAW § 7-122(1)(a) on First and Fourteenth Amendment grounds. (See Am. Compl., Dkt. No. 9.) Defendants are the New York State Board of Elections and Neil W. Kelleher, Douglas A. Kellner, Evelyn J. Aquila, and Helena Moses Donahue. On October 22, 2007, the court granted defendants' motion to dismiss and denied plaintiffs' motion for summary judgment. Price v. N.Y. State Bd. of Elections, 2007 WL 3104327 (N.D.N.Y. Oct. 22, 2007). On appeal, the Second Circuit reversed and remanded, directing this court to enter judgment for plaintiffs. Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 112 (2d Cir. 2008). Accordingly, judgment was entered for plaintiffs on October 8, 2008. (Dkt. No. 40.)

Pursuant to 42 U.S.C. § 1988, plaintiffs moved for attorneys' fees on February 3, 2009. (Dkt. No. 48.) While not disputing plaintiffs' entitlement to reasonable attorneys' fees, defendants filed opposition papers seeking a reduction of the hourly rate and the number of hours for which plaintiffs sought compensation. (Dkt. Nos. 54-55.) Having reviewed the parties' submissions, the court grants plaintiffs' motion for attorneys' fees and expenses, but denies plaintiffs' request for an upward enhancement.

II. Discussion

As the prevailing party here,*fn1 plaintiffs seek attorneys' fees in the amount of $104,252.50, costs in the amount of $1,443.24, and a 10% enhancement of the hourly rate. (See Pl. Reply Mem. of Law at 19, Dkt. No. 62:2.) While they do not dispute plaintiffs' status as the prevailing party or its entitlement to attorneys' fees and expenses, the defendants do dispute the amount of hours and hourly rate plaintiffs claim is appropriate. (See Def. Mem. of Law at 2, Dkt. No. 54.) In addition, defendants argue that plaintiffs' request for an additional 10% bonus or enhancement of the award is unwarranted. (See id.) For the reasons that follow, the court finds plaintiffs' request for attorneys' fees and expenses reasonable, but declines to enhance the fee award.

When determining the amount of attorneys' fees to award, courts within the Second Circuit apply a "presumptively reasonable fee analysis." Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 141 (2d Cir. 2007). This analysis "involves determining the reasonable hourly rate for each attorney and the reasonable number of hours expended, and multiplying the two figures together to obtain the presumptively reasonable fee award." Id. (citations omitted). In determining what is reasonable, the following factors are useful:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case 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.

Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany and Albany County Bd. of Elections, 522 F.3d 182, 186 n.3 (2d Cir. 2008) (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)). The court may also consider any independent interest counsel had in the case's outcome or any expected returns from the representation, such as reputational benefits that might accrue from being associated with the case. See id. at 184, 190.

In addition to guiding the court in determining what constitutes a reasonable award, the Arbor Hill and Johnson factors "may lead the district court to adjust the fee upward or downward." Hensley v. Eckerhart, 461 U.S. 424, 434 & n.9 (1983). For instance, where a plaintiff brings two distinct claims based on different facts and legal theories, and is ultimately successful on only one, the court may decline to award fees for services provided regarding the unsuccessful claim. See id. at 434-35. However, the court may not reduce a fee solely because counsel relies on alternative legal bases to achieve the same outcome, for "[t]he result is what matters." See id. at 435. Thus, "[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee." Id. Moreover, "in some cases of exceptional success an enhanced award may be justified." Id.; see also Green v. Torres, 361 F.3d 96 (2d Cir. 2004). But, the party advocating an upward or downward departure bears the burden of establishing that "an adjustment is necessary to the calculation of a reasonable fee." Grant v. Martinez, 973 F.2d 96, 101 (2d Cir. 1992) (citing U.S. Football League v. Nat'l Football League, 887 F.2d 408, 413 (2d Cir. 1989)).

Absent delay caused by the party seeking fees, the "reasonable hourly rate" to be relied on by the court in making its calculations "should be 'current rather than historic hourly rates.'" Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (quoting Missouri v. Jenkins, 491 U.S. 274, 284 (1989)). The rationale behind using current hourly rates is that "compensation received several years after the services were rendered ... is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings." Jenkins, 491 U.S. at 283; see also LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998).

Here, plaintiffs contend their counsel, Mr. Marcelle, spent 371.1 hours litigating this action, with 176.1 hours spent on the appeal and 195.0 hours spent prosecuting the case in district court, which includes 11.2 hours preparing the present fee application. (See Pl. Aff. at ¶ 22 and Ex. A, Dkt. No. 48:2; see also Pl. Reply Mem. of Law at 18, Dkt. No. 62:2.) Plaintiffs tack on an additional 19.9 hours to the total for time spent preparing their reply papers. (See Pl. Reply Aff. at ¶ 22, Dkt. No. 62.) Plaintiffs seek an hourly rate of $275 per hour,*fn2 and costs in the amount of $1,443.24. (See id.; see also Pl. Aff. at ¶ 73, Dkt. No. 48:2.) Lastly, plaintiffs request a 10% upward departure or enhancement of the fee award based on counsel's taking the case on a contingent basis and due to the difficulty, risk, uniqueness, undesirability, time constraints, and complexity of the case. (See id. at ¶¶ 62-70; see also Pl. Reply Mem. of Law at 19, Dkt. No. 62:2.)

In response, defendants first concede that plaintiffs' claimed costs are reasonable. However, defendants argue for an overall reduction of the total hours to 226.39, though they do concede the reasonableness of portions of plaintiffs' hours including (1) time spent from initial client contact to the conclusion of the hearing to show cause, 26.8 hours; and (2) time spent preparing the initial fee application, 11.2 hours. (See Def. Mem. of Law at 11, 23, Dkt. No. 54.) Moreover, defendants contend that plaintiffs' hourly rate should be reduced to $210 per hour for work done in 2006 and 2007, and $250 per hour for work done in 2008 and 2009. (See id. at 7, 10-11, 24.)

Starting with a total amount of 391.0 hours, plaintiffs agree to two reductions based on defendants' protests. First, plaintiffs concede that the time spent researching N.Y. ELEC.LAW ยง 7-122(1)(a) should be reduced from 9.7 hours to 4.8 hours. (See Pl. Mem. of Law at 12, 14, Dkt. No. 62:2.) Second, plaintiffs are willing to reduce by 7.0 hours the time spent drafting and editing the factual and procedural background section of their appellate brief. (See id. at 15-16.) Accordingly, after ...


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