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Paul Weather v. the City of Mount Vernon and Sergeant Michael Marcucilli

May 27, 2011


The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.,


On April 5, 2011, Plaintiff moved for an award of fees and expenses for work performed by his attorney, Francis X. Young, Mr. Young's Partner, Mayo G. Bartlett, and Barry Strutt, Esq., with whom Mr. Young consulted regarding Defendants' qualified immunity motion, pursuant to 42 U.S.C. § 1988 and Rule 54(d)(2) of the Federal Rules of Civil Procedure. Plaintiff requests an hourly rate of $400 and a total award of fees and expenses of $85,187.38.*fn1 Defendants contend that Plaintiff's hourly rate for work performed from 2007-2009 should be reduced to $300. Defendants also argue that Plaintiff's counsel overbilled at attorney hourly rates for clerical and paralegal services, and that Plaintiff inappropriately billed for travel time. Defendants further object that Plaintiff's application for an expert fee is improper.


On January 9, 2008, Plaintiff Paul Weather commenced this action by filing the Complaint, asserting claims of excessive force, false arrest and false imprisonment pursuant to 42 U.S.C. § 1983 as well as false arrest, false imprisonment and tort claims under New York state law. Plaintiff also asserted claims for municipal liability pursuant to Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). Prior to trial, all claims were voluntarily dismissed except for the § 1983 excessive force claim and a claim for battery under New York state law.

Plaintiff's claim arose from an incident at the Mount Vernon High School on January 12, 2007. (Compl. ¶ 18.) Plaintiff was exiting the school during a basketball game when he was assaulted by Sergeant Michael Marcucilli, a sergeant with the Mount Vernon Police. (Id. ¶ 19.) Plaintiff presented evidence at trial that as a result of this incident, he sustained a fractured clavicle, an injury to his right rotator cuff and aggravation of a pre-existing injury to his left rotator cuff.

This case was originally assigned to Judge Stephen Robinson, but was reassigned to this Judge on November 12, 2010. Trial was held from February 14, 2011 to February 17, 2011, when the jury entered a verdict in favor of the Plaintiff on both claims. The jury awarded the Plaintiff $290,000 in compensatory damages and $25,000 in punitive damages.


Plaintiff now moves for an award of attorneys' fees pursuant to 42 U.S.C. § 1988, which states in pertinent part that a court may award the prevailing party in a § 1983 action "a reasonable attorney's fee as a part of the costs." 42 U.S.C. § 1988. "Congress enacted fee-shifting statutes. to encourage private enforcement of civil rights statutes, to the benefit of the public as a whole. . . ." Quaratino v. Tiffany & Co., 166 F.3d 422, 426 (2d Cir. 1999).

As a prevailing party in a § 1983 suit, Plaintiff Weather is entitled to a reasonable attorney's fee. To evaluate the reasonableness of a requested fee, courts traditionally employ the lodestar method, pursuant to which a reasonable fee is calculated by multiplying the number of attorney hours reasonably expended by a reasonable hourly rate for the attorney's services. Blanchard v. Bergeron, 489 U.S. 87, 93 (1989). The utility of this method in the § 1988 context was recently reaffirmed by the Supreme Court in Perdue v. Kenny A., 130 S. Ct. 1662, 1669 (2010). This Circuit has also endorsed starting the reasonableness analysis by calculating the presumptively reasonable fee, bearing in mind all relevant case-specific variables, including, inter alia, "the complexity and difficulty of the case," "the resources required to prosecute the case effectively," and "the timing demands of the case." Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 493 F.3d 110, 112 (2d Cir.2007). The presumptively reasonable fee essentially represents "what a reasonable, paying client would be willing to pay," given that such a party wishes "to spend the minimum necessary to litigate the case effectively." Id. at 112, 118. The reasonableness of Plaintiff's counsel's request will be evaluated by determining a reasonable hourly rate and number of hours expended, and by weighing the factors set forth in Arbor Hill.

I. Reasonableness of Plaintiff's Counsel's Hourly Rate

Plaintiff's counsel Mr. Young seeks a rate of $400 per hour for himself and his partner, Mayo G. Bartlett, and Barry Strutt, Esq., with whom Mr. Young consulted regarding Defendants' qualified immunity motion. (Affidavit of Francis X. Young ("Young Aff.") at ¶¶ 14, 16, 17-18.) Defendants do not dispute that $400 is reasonable for "preparation and review for court conferences . . . the qualified immunity motion and related research, [or] pre-trial work performed in the end of 2010 and 2011," but argues that to charge $400 for the years 2007-2009, the period prior to trial preparation, is unreasonable. (Affidavit of Hina Sherwani ("Sherwani Aff." ) at 6.)

In determining whether an attorney's hourly rate is reasonable, the court uses "'the hourly rates employed in the district in which the reviewing court sits' in calculating the presumptively reasonable fee." Arbor Hill, 493 F.3d at 120 (quoting In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987)). Courts should rely on both evidence submitted by the parties as to the rates they typically charge, Farbotko v. Clinton County of New York, 433 F.3d 204, 209 (2d Cir. 2005), and "its own knowledge of comparable rates charged by lawyers in the district." Morris v. Eversley, 343 F.Supp. 2d 234, 245 (S.D.N.Y. 2004).

In this district, experienced civil rights attorneys have routinely been awarded rates approaching or exceeding $400. Martinez v. Port Authority of New York and New Jersey, No. 01 Civ. 721, 2005 WL 2143333 at *26 (S.D.N.Y. Sept. 5, 2005) (awarding rate of $425 for experienced partner in civil rights case); Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 546 (S.D.N.Y. 2008) (awarding an experienced civil rights litigator fees at $600 per hour); Vilkhu v. City of New York, No. 06 Civ. 2095, 2009 WL 1851019, at *4 (E.D.N.Y. June 26, 2009) ("precedent in the Southern District reveals that rates awarded to experienced civil rights attorneys over the past ten years have ranged from $250 to $600, and that rates for associates have ranged from $200 to $350, with average awards increasing over time.")

In support of the fee application, Plaintiff's counsel Mr. Young attests that while he generally works on a contingency basis, when he does work on an hourly rate, the rate he charges is $400 per hour. (Young Aff. ¶ 17.) He also affirms that he has been practicing law since 1984, and that during this time he has been primarily engaged in civil litigation including federal civil rights litigation. (Id. ¶ 4, 5-8.) Mr. Young estimates that he has tried approximately 60 civil ...

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