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Tucker v. City of New York

March 26, 2010

ATIBA TUCKER, PLAINTIFF,
v.
THE CITY OF NEW YORK ET AL., DEFENDANTS.



The opinion of the court was delivered by: The Honorable VICTOR Marrero, U.S.D.J.

REPORT & RECOMMENDATION

Plaintiff Atiba Tucker commenced this lawsuit in mid-2008 against the City of New York, a City police officer and sergeant, and various officer John Doe and supervisory Richard Roe defendants. In his pleading he complained about the circumstances of his arrest and asserted claims for, among other things, false arrest and the use of excessive force in handcuffing him. Invoking 42 U.S.C. § 1983, he asserted a variety of federal claims, principally under the Fourth Amendment, as well as state-law claims, and sought compensatory and punitive damages.

On March 4, 2009 plaintiff accepted an offer of judgment previously served by defendant City of New York, which proposed a payment of $3,501.00 plus "reasonable attorneys' fees, expenses and costs". (R. 68 Offer of Judgment dated Feb. 18, 2009). The parties subsequently attempted unsuccessfully to resolve the amount of the fee, expense and cost award. Having failed in that effort, they have resorted to motion practice.

In plaintiff's initial papers, he seeks an award of $35,920.28 in fees for the work principally of two lawyers, plus an additional $849.03 in expenses. In plaintiff's reply papers he asks for an additional $3,168.75 in fees to cover the work embodied in that submission. In short, plaintiff seeks nearly $40,000.00 in fees and expenses. Defendant opposes, contending that plaintiff's attorneys are substantially overbilling their hours, are seeking highly inflated hourly rates, are requesting fees for work that is not subject to a fee award, are only marginally competent and should be limited to an award of no more than $5,000.00 in fees and costs for what defendant considers to be at best a weak case and result.

For the reasons that follow, we recommend that plaintiff be awarded $21,392.50 in fees and $849.03 in costs and expenses.

Prior Proceedings

One of plaintiff's two attorneys of record, David B. Rankin, Esq., received this case pre-suit as a referral from another attorney in or about August 2007. He then persuaded a more experienced lawyer, Jeffrey A. Rothman, Esq., to work with him on the case. The basis for the intended lawsuit was the arrest of their client, Mr. Tucker, while he was on the rear porch of a single-family house in the Bronx. Mr. Tucker claimed that he had been found on private property because he had fled from two carjackers, badly breaking his wrist in the process, and that he was seeking assistance in summoning the police and avoiding his armed attackers. The residents of the house called the police after Tucker began banging on the back door, breaking a glass door pane in the process. According to Mr. Tucker, there was no basis for the arrest. Moreover, he asserted that in view of the severe pain that he was experiencing from his broken wrist -- which subsequently required surgery -- it was unreasonable for the police to insist on rear-cuffing him when transporting him in a patrol car to the precinct, a condition so painful that he fainted once he arrived at the precinct. (Compl. at ¶¶ 12-30).

Mr. Tucker was charged with two counts of burglary and with criminal trespass and criminal mischief. The District Attorney later dismissed the burglary charges, and Tucker subsequently received an Adjournment in Contemplation of Dismissal on the other charges, paying $300.00 and a five-percent surcharge. (Id. ¶¶ 31- 35).

Before commencing suit in this court, counsel filed an application in the New York State Supreme Court under Gen. Mun. L. § 50-e(5) for leave to file a notice of claim out of time with the City.*fn1 The state court granted the petition, Mr. Tucker filed the notice, and the City conducted a so-called section 50-h hearing, which involved an examination under oath of plaintiff. (Compl. at ¶¶ 6-7; Decl. of Jeffrey A. Rothman, Esq. in Supp. of Mot. for Att'ys' Fees and Other Discretionary Costs, executed Apr. 30, 2009, ¶ 12).

Plaintiff filed his twelve-claim complaint in this court on May 21, 2008.*fn2 Following an initial conference, the court ordered that discovery be completed by February 28, 2009. (Case Management Order dated Oct. 31, 2008 at ¶ 5). As a result of the District Court's concurrent reference of the case to me for general pretrial supervision, we scheduled a conference for November 21, 2008. The parties finally exchanged initial disclosures in mid-November 2008, and at the conference on November 21 they requested that we conduct a settlement conference. We acquiesced and set such a conference for January 8, 2009. (Order dated Nov. 21, 2008). On the same day -- November 21 -- plaintiff served three sets of document requests and interrogatories -- one set for each defendant -- on defendants' counsel. (Decl. of Mark D. Zuckerman, Esq., executed May 11, 2009, Ex. B). Because of later developments, however, defendants never served responses, and the parties undertook no other discovery. (See Rothman Decl. at ¶ 17).

In January the settlement conference was adjourned to February 17, 2009 at the request of defendants' counsel. (Order dated Jan. 14, 2009). We also agreed to a request by the parties to adjourn without date the deadlines for discovery and other pretrial steps pending the settlement conference. (Endorsed Order dated Jan. 16, 2009).

We conducted the conference on February 17. Although the discussions did not yield agreement at that time, on the next day defendant City of New York served its offer of judgment, and plaintiff accepted it on March 4, 2009.*fn3 Judgment incorporating the terms of the offer was entered on March 6, 2009, and the parties thereafter engaged in settlement discussions concerning fees and expenses, a process that included a settlement conference with the court on April 10, 2009.

Since the parties were unable to bridge their differences on fees, plaintiff filed his application for an award on May 1, 2009. The defendant filed opposition papers, and plaintiff has filed a reply.

The Current Application

The plaintiff's fee application seeks an award for approximately 110 hours of attorney time attributable almost entirely to Messrs. Rothman and Rankin.*fn4 Mr. Rothman seeks to be compensated at a rate of $325.00 for his work in 2007 and 2008, and at a clip of $400.00 per hour for his time spent in 2009. Mr. Rankin seeks an award based on an hourly rate of ...


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