The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On March 14, 2011, Plaintiffs' attorneys Michael L. Spiegel and Scott A. Korenbaum moved for an award of attorneys' fees and expenses totaling $280,940.44 pursuant to 42 U.S.C. § 1988. On March 28, 2011, Defendants filed an affidavit and memorandum of law in opposition to the request for fees, arguing first that Plaintiffs are not entitled to any fees, and, in the alternative, that Plaintiffs' request is excessive. On April 7, 2011, Plaintiffs filed a reply brief, in which Mr. Spiegel lowered his portion of the request for fees by seven hours in response to Defendants' objections. The reply brief also amended the amount of Plaintiffs' request by incorporating additional fees for work performed on the reply by Mr. Spiegel and Mr. Korenbaum. Plaintiffs' final request for fees and costs totals $290,997.94.
Plaintiffs Deja Barbour, Shinnel Gonzalez and Rakayyah Massey commenced this action by filing the Complaint on April 16, 2007, following the favorable termination of criminal proceedings against them in 2006. (Declaration of Michael L. Spiegel ("Spiegel Decl.") ¶ 19.) Plaintiffs' Complaint arises out of their arrest during an incident in the early morning of April 25, 2004. (Id. ¶ 20.) That morning, the three women had walked out of a White Plains diner when they observed several police officers questioning and ultimately arresting two of their male friends. (Id.) Plaintiffs protested the rough treatment their male friends were receiving at the hands of the officers, and they were placed under arrest by the officers, who were Defendants in this case. (Id.) The criminal case against Plaintiffs proceeded for two years; Plaintiff Massey's case was dismissed mid-trial and the other two Plaintiffs were acquitted. (Id.)
Following the resolution of their criminal case, Plaintiffs sued the Defendants for false arrest, excessive force, malicious prosecution and failure to intervene under 42 U.S.C. § 1983 and for malicious prosecution under New York state law. (Compl. at 4-8.) They also brought § 1983 claims against the City of White Plains under theories of supervisory liability and municipal liability pursuant to Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). An initial pre-trial conference was held before Judge Robinson on September 14, 2007. The case was then transferred to Judge Karas, before whom a pre-trial conference was held on May 20, 2008. Judge Karas set a discovery deadline of July 1, 2008. The parties appeared for a settlement conference before Magistrate Judge Davison on March 4, 2010. On January 7, 2011, this case was transferred to this Judge, before whom a conference was held on January 21, 2011. A trial date was set for March 14, 2011.
On March 1, 2011, Defendants made three Rule 68 Offers of Judgment, each for the "total sum of TEN THOUSAND DOLLARS AND 00/100 ($10,000) for the settlement of all claims pending against the defendants in this action." (Spiegel Decl., Ex. A.) On March 2, 2011, notices of acceptance of Rule 68 Offers of Judgment were filed with the Court, and on March 8, 2011, Judgment Pursuant to Rule 68 was entered in favor of each Plaintiff for the sum of $10,000, "with the costs accrued, including reasonable attorneys' fees, in an amount to be determined by the Court." On March 14, 2011, Plaintiffs' counsel filed their application for attorneys' fees.
Rule 68 provides that "[m]ore than 10 days before the trial begins, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued." Fed. R. Civ. P. 68. 42 U.S.C. § 1988 provides, in relevant part, that in an § 1983 action, a court may award the prevailing party "a reasonable attorney's fee as a part of the costs." Plaintiffs contend that they are prevailing parties in this § 1983 suit by virtue of their acceptance of Defendants' Rule 68 offer, and that they are entitled to costs of the litigation, including attorneys' fees. Plaintiffs contend that these costs are to be paid by Defendants in addition to the $10,000 per Plaintiff settlement. Defendants argue that by incorporating the language "for the settlement of all claims" in the Rule 68 Offers of Judgment, they intended for the $10,000 sum to include attorneys' fees, and that therefore Plaintiffs are not entitled to any additional fees. Alternatively, Defendants argue that Plaintiffs are not prevailing parties entitled to fees pursuant to § 1988, and that Plaintiffs' request for fees is excessive.
For the reasons stated below, Plaintiffs' application is granted.
I. Attorneys' Fees in Rule 68 Offers of Judgment
Defendants argue that the language "settle all claims" in the Rule 68 Offers of Judgment "show[s] that legal fees were contemplated in the Rule 68 Offer made to Plaintiffs." (Affidavit of Joseph A. Maria ("Maria Aff.") at 3.) Therefore, Defendants contend, an award of legal fees in addition to the $10,000 payment is inappropriate. Plaintiffs argue that because the Rule 68 Offer did not state specifically that costs were included in the $10,000 figure, and did not specify an amount for costs, an additional award of costs, including attorneys' fees, is warranted. (Pls.' Mem. in Supp. at 4.)
It is settled law that if a Rule 68 offer of judgment is intended to include costs in the offered sum, it should expressly state that intent. Marek v. Chesny, 473 U.S. 1, 6 (1985) ("[i]f the [Rule 68] offer does not state that costs are included and an amount for costs is not specified, the court will be obligated by the terms of the Rule to include in its judgment an additional amount which in its discretion, it determines to be sufficient to cover the costs"). If Defendants had intended its offers to include costs and attorneys fees, its offers of judgment should have so stated. Sas v. Trintex, 709 F. Supp. 455, 457-58 (S.D.N.Y. 1989) ("[i]f the offer of judgment . . . simply had stated that it was to include costs, its acceptance would have prohibited an additional claim for attorney's fees").
While Defendants now object that they intended for the $10,000 offer to be inclusive of costs, this case is on all fours with Sas, in which Judge Goettel stated "[t]he . . . fact of the matter is that the defendant's counsel never anticipated that the plaintiff would accept the offer of judgment and, indeed, that offer would not have been accepted had it included attorney's fees. Defendant's counsel simply erred in failing to protect against an acceptance of the offer followed by a request for costs, including attorney's fees." Sas, 709 F. Supp. at 458. Defendants drafted the Rule 68 offer. If they intended for it to be inclusive of attorneys' fees, the offer should have clearly expressed that intent.*fn1
In addition to their argument regarding the offer's language, defense counsel's affidavit alleges that the March 8, 2011 Judgment signed by the Court could be fairly read to mean "that the Court properly has decided that some amount of the $10,000.00 to each person is awardable to the Plaintiff as legal fees." (Maria Aff. at 2.) Defendants' counsel's reading of the Judgment is incorrect. The law is clear, as set forth above, that because the offers did not specify that they were to include fees, the Court is required to allow a separate award of fees.
Defendants also argue that Plaintiffs are not entitled to an award of fees because "the Judgment which the Court issued was not a Consent Order. . . the parties' settlement by way of a Rule 68 Settlement offer and the Court's judgment did not constitute sufficient bases upon which an ...