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Luca v. County of Nassau

January 25, 2010


The opinion of the court was delivered by: Block, Senior District Judge


This case comes to the Court for reconsideration of the hourly rate the Court utilized in calculating an award of attorney's fees for plaintiff's attorney, Frederick Brewington ("Brewington"), in light of the Second Circuit's recent decision in Simmons v. New York City Transit Authority. 575 F.3d 170 (2d Cir. 2009); see also Luca v. County of Nassau, No. 08-3384-CV, 2009 WL 2524022, at *4 (2d Cir. Aug. 19, 2009) (hereafter "Luca Remand"). Plaintiff now also seeks attorney's fees and costs incurred opposing the defendant's appeal.


In the district court, Brewington successfully represented the plaintiff ("Luca") in her Title VII litigation against the defendant ("the County") for failing to hire her as a police officer. The jury awarded her $150,000 in compensatory damages. The Court awarded her an additional $604,589 for future lost wages and pension benefits; the parties had agreed that the Court would compute plaintiff's front pay award in the event of a verdict in her favor. The Court also awarded costs in the amount of $15,662.36. Luca v. County of Nassau, No. 04-CV-4898, 2008 WL 2435569, at *11 (E.D.N.Y. June 16, 2008) (hereafter "Luca Dist. Ct. Op."). The Second Circuit succinctly affirmed these awards by Summary Order. Luca Remand at *4.

The Court also awarded attorney's fees of $179,722.50 ("the fee award"). Luca Dist. Ct. Op. at *11. In arriving at this sum, the Court referenced the hourly rates charged by attorneys in both the Eastern District of New York, where the case was tried and where Brewington's law office was located, as well as the Southern District of New York. Id.

The Second Circuit remanded for reconsideration of the fee award in light of Simmons. In that case, the Second Circuit held that "when faced with a request for an award of higher out-of-district-rates" charged by attorneys, "a district court must first apply a presumption in favor of" applying the prevailing rates of its district; "[i]n order to overcome that presumption, a litigant must persuasively establish that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result." Simmons, 575 F.3d at 175. As the circuit court explained in its remand order:

As we recently explained in [Simmons], however, an examination of out-of-district rates is proper only in a narrow set of circumstances. Because the fees in this case were awarded prior to Simmons, the record is insufficient to determine whether those circumstances obtain here. Accordingly, the district court's award of attorneys' fees is vacated and remanded for further analysis in light of our decision in Simmons.

Luca Remand at *4.

In utilizing both Eastern and Southern District rates, the Court noted, as had other Eastern District judges, that the border between the two district courts "is uniquely permeable," Luca Dist. Ct. Op. at *9, linked together by numerous bridges, tunnels and highways; indeed, the two district courthouses are each juxtaposed to the Brooklyn Bridge, within an easy stroll from each other. Consequently, "[a] strict application of the forum rule would ignore this geographic reality," id. (citation omitted), as well as its economic consequences; it would create an unreasonable disincentive for Manhattan-based attorneys to bring suits in Brooklyn, as well as "an incentive for lawyers based in the Eastern District not to take cases in their own backyard because higher rates for the same work lie just across the East River." Id.

In implicitly rejecting this logic, and placing highly restrictive limitations on a district court from exercising its sound discretion in a given case, Simmons abjured the use of Southern District rates for Eastern District litigations because the plaintiff had not shown "that they were likely to produce a substantially better result than competent counsel in the Eastern District would produce for less . . . money," reasoning that the defendant "should not be required to pay for a limousine when a sedan could have done the job." Simmons, 575 F.3d at 177. In conjuring this metaphor, the circuit court presumably did not intend to suggest that there was a qualitative difference in the competency of counsel between the two districts, yet it regrettably may be perceived by lawyers whose offices are in the Eastern District as having a condescending tone. To be sure, the Court has throughout the years presided over trials with Eastern District lawyers-such as Brewington-who deserved to drive in limousines, and has had trials with some Southern District lawyers who should have been driving clunkers. The Court presumes that the Simmons court would agree that the differences in rates between the two districts, rather than being qualitatively based, are more likely driven by the differences in office rents and the costs of running a law practice. See also Gutman v. Klein, No. 03-CV-1570, 2009 WL 3296072, at *2 n.1 (Cogan, J.) (E.D.N.Y. Oct. 13, 2009) (criticizing Simmons for ignoring "the practical reality of practicing law in New York [City]," and concluding, "[i]t may be that the concept of a geographically-based as opposed to case complexity-based lodestar will someday have as much relevance to the selection of an attorney as dinosaurs have to birds."); Mark Fass, Judge Follows Circuit in Fee Award But Expresses Dissatisfaction With 'Geographic Lodestar' Model, N.Y.L.J., Oct. 22, 2009, at 1.


A. Brewington's Eastern District Hourly Rate for Trial Services

On remand, Brewington does not seek to rebut the Simmons presumption in favor of the Eastern District's prevailing hourly rates; he contends simply that the hourly rate of $400 previously selected by the Court is a reasonable rate within the Eastern District, even though the Court had bolstered its analysis by also citing to Southern District rates. See Brewington Decl. ¶¶ 4-20. The County proposes a rate of $325 per hour, which it says is the "prevailing rate for partners." Reissman Decl. ¶ 5.

The Court adheres to its findings of fact with respect to Brewington's experience and the quality of the services he provided in this case:

Brewington has over 25 years' experience as a lawyer. In 1987, he started his own firm, specializing in plaintiffs-side civil rights cases; according to docket searches, he has handled roughly 180 such cases in the Eastern District of New York and another 20 in the Southern District. His peers recognize him as an authority in his specialty, as evidenced by his numerous teaching and speaking engagements.

The caliber of Brewington's performance against a tenacious adversary was outstanding and resulted in an extremely favorable result for his client.

Luca Dist. Ct. Op. at *9-*10.

Brewington's proposed rate of $400 per hour exceeds the fee awards he has received in prior Eastern District litigations. See Cruz v. Henry Modell & Co., No. 05-CV-1450, 2008 WL 905351 (Tomlinson, M.J.) (E.D.N.Y. Mar. 31, 2008) (awarding Brewington $325 per hour); Duke v. County of Nassau, No. 97-CV-1495, 2003 WL 23315463 (Seybert, J.) (E.D.N.Y. Apr. 14, 2003) ($300 per hour); Werring v. SUNY Farmingdale, No. 98-CV-5248, Docket Entry No. 43 (Boyle, M.J.) (E.D.N.Y. Oct. 4, 2000) ($300 per hour).

Nonetheless, numerous recent cases in the Eastern District convince the Court that a reasonable paying client would gladly pay $400 per hour for an attorney of Brewington's caliber. See Gutman, 2009 WL 3296072, at *2 (hourly rates of between $300 and $400 for partners found to be "within the Eastern District range"); Rodriguez v. Pressler & Pressler, LLP, No. 06-CV-5103, 2009 WL 689056 (Cogan, J.) (E.D.N.Y. Mar. 16, 2009) (awarding $450 per hour to civil rights attorney with 17 years of experience in FDCPA case); Brady v. Wal-Mart Stores, Inc., 455 F. Supp. 2d 157, 208 (E.D.N.Y. 2006) (James Orenstein, M.J.) (awarding $350 per hour to partners in ADA employment discrimination case), aff'd, 531 F.3d 127 (2d Cir. 2008); see also Morgenstern v. County of Nassau, No. 04-CV-58, 2009 WL 5103158, at *16-18 (Lindsay, M.J.) (E.D.N.Y. Dec. 15, 2009) (awarding $400 per hour in a § 1983 case, relying on Judge Cogan's analysis in Gutman).*fn1

The $400 which Brewington seeks is compatible with these awards.

Brewington bolsters his fee request with numerous affidavits from other experienced civil rights attorneys who practice in the Eastern District; each attests to the reasonableness of Brewington's requested rate. Among these affidavits is that of Douglas Wigdor, an attorney with 14 years of litigation experience in labor and employment law; he received an award of $350 per hour in Brady. 455 F. Supp. 2d at 216; Wigdor Decl. (Brewington Supplemental Application, Ex. C).*fn2 Brewington also submits an affidavit from Matthew Brinckerhoff, an attorney with 20 years of experience in federal civil rights litigation who received $450 per hour in Rodriguez. 2009 WL 689056, at *1. Brinckerhoff also attests that his current hourly rate is $525 and that, by contrast, Brewington's request for $400 per hour is ...

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