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Davis v. City of New York


October 18, 2011


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.


Plaintiffs brought this putative class action, on behalf of themselves and a class of similarly situated persons, against the City of New York (the "City") and the New York City Housing Authority ("NYCHA") to remedy the continuing violation of various constitutional rights secured by 42 U.S.C. § 1983 ("section 1983"). Nine of the sixteen original plaintiffs, hereafter referred to as the "Settling Plaintiffs," accepted offers of judgment pursuant to Federal Rule of Civil Procedure 68 ("Rule 68")*fn1 and took Judgments Pursuant to Rule 68 ("Rule 68 Judgments") against the City on February 7, 2011.*fn2 On July 8, 2011, the Settling Plaintiffs moved for an award of attorneys' fees and costs which the City opposed. For the following reasons, the Settling Plaintiffs' motion is granted but not in the amount sought.


Plaintiffs*fn3 filed the instant action on January 28, 2010, alleging violations of the Fourth and Fourteenth Amendments of the United States Constitution, Title VI of the Civil Rights Act of 1964,*fn4 Title VIII of the Civil Rights Act of 1968,*fn5 the United States Housing Act,*fn6 , the Constitution and laws of the State of New York, and the New York City Human Rights Law.*fn7 Plaintiffs allege that defendants, operating through the New York City Police Department ("NYPD"), were engaged in a pattern and practice of "illegal stops, seizures, questioning, searches, and false arrests" of residents and visitors to housing developments maintained by the NYCHA.*fn8 In particular, plaintiffs complain about the use of allegedly unlawful "vertical patrols."*fn9 These vertical patrols consist of "roving pedestrian checkpoints in and around NYCHA residences, wherein [police officers] indiscriminately stop and question every person they observe, without objective individualized suspicion of a crime, and unlawfully arrest individuals for trespass without probable cause."*fn10 Plaintiffs further allege that "[d]efendants implement and apply these policies, practices, and customs in an intentionally discriminatory and race-based manner . . . ."*fn11 According to plaintiffs, defendants' policies are "not explained or justified by underlying crime levels in NYCHA residences" but instead are based on the "race, ethnicity, and/or national origin" of the residents and visitors of NYCHA buildings.*fn12 To remedy these constitutional violations, plaintiffs seek class certification "for the purpose of obtaining injunctive and declaratory relief only."*fn13 Plaintiffs also seek "compensatory damages for their individual claims[.]"*fn14

Nine of the sixteen original plaintiffs accepted Rule 68 offers. Four Settling Plaintiffs -- Anthony Anderson, Edwin Larregui, William Turner and David Wilson -- were extended Rule 68 offers on September 20, 2010, which they accepted on October 4, 2010.*fn15 Five other Settling Plaintiffs -- Adam Cooper, Kelton Davis, Shawne Jones, Hector Suarez and Geneva Wilson -- were extended Rule 68 offers on December 7, 2010, which they accepted December 20, 2010.*fn16

When the Settling Plaintiffs accepted the Rule 68 offers, they agreed to dismiss all claims in exchange for specified dollar amounts. Thus, the Settling Plaintiffs did not obtain class certification, injunctive relief, or declaratory relief.

In their motion for attorneys' fees and costs, the Settling Plaintiffs submitted bills for seven attorneys, four from the Legal Aid Society ("LAS" or "Legal Aid") and three from the NAACP Legal Defense and Educational Fund, Inc. ("LDF" or the "Fund"). Initially, the Settling Plaintiffs sought a total award of $277,255.58, consisting of $114,102.20 in fees for Legal Aid, $151,109.63 in fees for LDF, and $12,043.75 in costs for LDF. In their reply papers, the Settling Plaintiffs seek an additional $5,418.75 in attorneys' fees for Legal Aid and $19,370.00 in attorneys' fees for LDF.*fn17 When the other adjustments proposed by the Settling Plaintiffs are taken into account,*fn18 the revised amounts sought in attorneys' fees is $118,883.45 for Legal Aid and $138,450.88 for LDF, with the same costs of $12,043.75 for LDF.*fn19


A "prevailing party" in a civil rights action is entitled to an award of attorneys' fees and costs.*fn20 The Second Circuit has held that plaintiffs who accept Rule 68 offers of judgment qualify as "prevailing parties" entitled to attorneys' fees and costs.*fn21 Furthermore, a prevailing party is also entitled to reimbursement for time reasonably expended in preparing its attorneys' fee application.*fn22 Thus, "absent unreasonably dilatory conduct by the prevailing party in 'any portion' of the litigation, which would justify denying fees for that portion, a fee award presumptively encompasses all aspects of the civil action," including litigation over attorneys' fees.*fn23 "The district court has broad authority to depart from this basic assumption" where, for example, "the fee claims are exorbitant or the time devoted to presenting them is unnecessarily high."*fn24

District courts are afforded considerable discretion in determining the amount of attorneys' fees in any given case.*fn25 In calculating a reasonable fee award, the Second Circuit has adopted the "presumptively reasonable fee" approach.*fn26 "Although the term 'lodestar' is now disfavored by the Second Circuit, the applicable approach still contemplates (1) a consideration of the number of hours actually spent by counsel and other personnel that are deemed reasonably necessary to a successful outcome for the client, and (2) the setting of reasonable hourly rates for counsel . . . ."*fn27 "The presumptively reasonable fee boils down to 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."*fn28

"The reasonable hourly rate is the rate a paying client would be willing to pay."*fn29 In determining the reasonable hourly rates to be applied, courts should look to the market rates "'prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'"*fn30 "The relevant community to which the court should look is the district in which the case was brought."*fn31 To compensate for the delay in payment, the hourly rates to be used should be "'current rather than historic hourly rates.'"*fn32

There is no rule requiring proportionality between the amount of fees requested and the damages recovered. The Second Circuit has recently stated that

[w]hile a court may, in exceptional circumstances, adjust the lodestar, it may not disregard it entirely. Especially for claims where the financial recovery is likely to be small, calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery. Thus, the district court abused its discretion when it ignored the lodestar and calculated the attorneys' fees as a proportion of the damages awarded.*fn33

The Second Circuit has stated, however, "that 'the most critical factor' in a district court's determination of what constitutes reasonable attorney's fees in a given case 'is the degree of success obtained' by the plaintiff."*fn34 The "degree of success" inquiry "is not limited to inquiring whether a plaintiff prevailed on individual claims."*fn35 "Both the quantity and quality of relief obtained, as compared to what the plaintiff sought to achieve as evidenced in her complaint, are key factors in determining the degree of success achieved."*fn36 "'If a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount . . . even where the plaintiff's claims were interrelated, non-frivolous, and raised in good faith.'"*fn37 Accordingly, "a district judge's authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiff's 'partial or limited success' is not restricted either to cases of multiple discrete theories or to cases in which the plaintiff won only a nominal or technical victory."*fn38

"Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization."*fn39 In furtherance of such parity, the Supreme Court offered the following guidance within the context of the federal civil rights fee-shifting statute:

Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. In the private sector, "billing judgment" is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.*fn40

Thus, "[i]n determining what fee is reasonable, the court takes account of claimed hours that it views as 'excessive, redundant, or otherwise unnecessary.'"*fn41 In doing so, "the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties."*fn42 Moreover, the "presumptively reasonable fee" is subject to further reduction due to plaintiffs' limited success.*fn43 "In lieu of making minute adjustments to individual timekeeping entries, a court may make across-the-board percentage cuts in the number of hours claimed, 'as a practical means of trimming fat from a fee application.'"*fn44


A. The February Proposal

On February 25, 2011, plaintiffs presented the City with a fee settlement proposal (the "February Proposal"). The February Proposal did not include any attorneys' fees or costs for work done by the Paul Weiss attorneys. The February Proposal was intended to only include fees for work through December 7, 2010, the date of the City's second round of Rule 68 offers. The February Proposal states:

Because these settlements are limited to individual damages and are for a subset of Plaintiffs, our present application is limited to fees that we attribute to work done on behalf of the Rule 68 Plaintiffs' individual damages only. As such, this application does not seek fees for work done solely in furtherance of the Monell claims or injunctive relief. Moreover, where the work is attributable to all of the Plaintiffs, we have discounted the amount in half since this application is on behalf of approximately half of the Plaintiffs.*fn45

The February Proposal sought $41,041.50 in attorneys' fees for the following attorneys: Amanda Moretti, Steve Wasserman, Nancy Rosenbloom, Johanna Steinberg, and Jih Hee Lee.*fn46

Included in the declarations of attorneys William Gibney and Johanna

B. Steinberg in Support of Plaintiffs' Motion for an Award of Attorneys' Fees and Costs is an identical Exhibit B which contains time entries associated with the Settling Plaintiffs' individual claims.*fn47 Although the City apparently "absolutely refused to negotiate a bifurcated fee settlement,"*fn48 this Court finds that the fees associated with plaintiffs' pattern and practice claims should be deferred, pending the ultimate resolution of this action. To allocate a portion of such fees to the Settling Plaintiffs at this stage of the litigation makes little sense given that the degree of plaintiffs' success with regard to their pattern and practice claims has not yet been determined. The degree of plaintiffs' success is perhaps the most crucial factor to be considered when determining the amount of fees to be awarded. Accordingly, this Court will confine the present fee request to the fees associated with the Settling Plaintiffs' individual claims for money damages.

In determining the appropriate amount of such fees, the supporting documentation found in Exhibit B -- detailing each attorneys' time charges for the Settling Plaintiffs' claims -- will be relied upon and reviewed. Because of a previous mathematical error in the amount of attorneys' fees originally included in Exhibit B, plaintiffs submitted a revised Exhibit B on October 3, 2011. The amount of fees included in the revised Exhibit B is $38,032.50.

B. Hourly Rates

The City argues that there is a "disconnect" between the hourly rates sought for the attorneys seeking fees and the level of experience for those attorneys. The following chart summarizes the information found in Exhibit B.*fn49

Attorney Hour Rate Total Adjusted Adj.

Total Hrs LAS Moretti 27.25 $425 $11,581.25 $7,596.88 17.88

Wasserman 23.25 $425 $9,881.25 $8,659.38 20.38 Rosenbloom 1.50 $425 $637.50 $637.50 1.50 LDF Steinberg

Pre 7/1/10 47.25 $360 $17,010.00 $10,890.00 30.63 Post 7/1/10 25.10 $390 $8,287.50 $7,848.75 23.90 Lee 11.00 $400 $4,400.00 $2,400.00 6.00 Totals $38,032.51

The hourly rates sought by the Settling Plaintiffs, the rates proposed by the City, and the rates determined by this Court are summarized in below.

Attorney Years Hourly Rate Hourly Rate Hourly Rate

Experience Sought Proposed Set by Court Wasserman 31 $425 $400 $425 Moretti 20 $425 $350 $400 Rosenbloom 24 $425 $350 $400 Steinberg - pre 7/1/10 9 $360 $300 $350 Steinberg -post 7/1/10 9 $390 $300 $375 Lee 11 $400 $300 $375

Wasserman has the most experience, thirty-one years, and is therefore entitled to the highest rate sought by the Settling Plaintiffs. Moretti and Rosenbloom have considerably less experience than Wasserman, twenty and twenty-four years respectively, but the Settling Plaintiffs seek the same hourly rate of $425 per hour for both attorneys.*fn50 To account for the differences in experience, this Court finds that a small reduction, to $400 per hour, is appropriate for these attorneys. Finally, Steinberg and Lee have roughly half of the experience of Moretti and Rosenbloom yet the Settling Plaintiffs seek rates of $360/$390 and $400 per hour for these attorneys. Surely, a reasonable paying client would not pay an attorney with ten years experience the same hourly rate he would pay an attorney with twenty or thirty years experience. Accordingly, the Court sets the rates for Steinberg and Lee at $350 per hour. The rates established above are in accord with relevant case law.*fn51

C. Pre-Complaint Work

The City objects to a number of time entries that pre-date the filing of the Complaint on the ground that the work billed must be expended on the litigation itself.*fn52 In Webb v. Board of Education of Dyer County, Tennessee, the

Supreme Court noted that "[t]he time that is compensable under § 1988 is that 'reasonably expended on the litigation.'"*fn53 The Supreme Court suggested that the standard to use to determine if pre-complaint work is compensable is whether the work "was both useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached before settlement."*fn54 The question, then, is how much of the work performed prior to the filing of the complaint was useful to advance the federal claims subsequently asserted herein.

Wasserman's time charges begin on January 15, 2009 and end on December 10, 2009.*fn55 Thus, for purposes of the instant fee award, all of Wasserman's time is pre-complaint. Steinberg's time charges begin on May 27, 2009, and continue through January 22, 2010.*fn56 According to the supporting documentation, the vast majority of Wasserman's time entries list the actual plaintiff with whom the work was associated.*fn57 For those entries that do not identify a particular plaintiff, the Settling Plaintiffs allocate half the amount as compensable, in accordance with the parties's stipulation.*fn58 Conversely, most of Steinberg's pre-complaint time entries do not identify a particular plaintiff.*fn59 As with Wasserman, the Settling Plaintiffs include only fifty percent of Steinberg's unidentifiable pre-complaint work in the instant fee request.

This Court finds that most of Wasserman's and Steinberg's pre-complaint work was relevant and related to the instant litigation and is thus compensable. However, for those time entries that relate to "potential plaintiffs," the following adjustments are needed: Wasserman -- 2.50 hours (8/24/09), 1.25 hours (8/26/09) (3.75 hours total reduction); Steinberg -- 2.50 hours (8/24/09), 1.25 hours (8/26/09), 0.50 hours (9/5/09) (4.25 hours total reduction, all pre 7/1/10).*fn60

D. Travel Time

The City acknowledges that the Settling Plaintiffs seek compensation for travel time at fifty percent (50%) of their normal rates. Nonetheless, the City argues that "given the wide availability of electronic means of communication, . . . a reasonable paying client would not agree to pay for travel time."*fn61 The City has therefore identified two areas for possible deductions: (1) those time entries specifically designated as travel time only, for which a 100% reduction is suggested; and (2) those time entries that list meetings held in outside offices but do not contain separate entries for travel time, for which a 33% reduction is proposed.*fn62

This Court rejects the City's proposal to eliminate, in their entirety, those time entries specifically designated as travel only, which were billed at fifty percent (50%) of the attorneys' normal rates. Courts in this district typically allow for travel time at fifty percent.*fn63 However, this Court agrees with the second category of adjustments but does not agree with the suggested discount rate of 33%. Accordingly, the following adjustments, in hours, are needed to discount travel time: Moretti -- 0.50 hours (5/24/10); 0.50 hours (9/24/10) (1 hour total reduction); Wasserman -- 1.00 hours (4/18/09), 0.50 hours (5/27/09) (1.50 hours total reduction); Steingberg -- 1.00 hours (11/5/09), 1.00 hours (11/23/09), 0.50 hours (8/17/10), 1.00 hours (9/23/10) (3.5 hours total reduction, 2 hours pre 7/1/10 and 1.5 hours post 7/1/10); Lee - 0.50 hours (5/25/10), 0.50 hours (8/17/09) (1 hour total reduction).

E. Class Certification

Attorney Jin Hee Lee charged one hour on October 26, 2010 for "Draft class cert declaration for S. Jones." The Settling Plaintiffs, however, achieved no class-wide relief, only money damages for their individual claims. Thus, work related to class certification did not advance the settlement efforts of the Settling Plaintiff and is therefore non-compensable. Accordingly, one hour of Lee's time will be deducted from the instant award.

F. Revised Summary of Charges

In light of the adjustments made above, to both the hourly rates and the number of hours, the following chart summarizes the attorneys' fees that relate to the litigation of the Settling Plaintiffs' claims.*fn64

Adjusted Adjusted Adjusted Attorney Hours Rates Fees Amanda Moretti 16.88 $400 $6,752.00 Steve Wasserman 15.13 $425 $6,430.25 Nancy Rosenbloom 1.5 $400 $600.00 Johanna Steinberg - 24.38 $350 $8,533.00 pre 7/1/10 post 7/1/10 22.4 $375 $8,400.00 Jin Hee Lee 4 $375 $1,500.00 Total $32,215.25

The Settling Plaintiffs also seek attorneys' fees relating to the filing of the instant fee application. The hours requested, and the adjusted rates, are as follows: Lee - 7 hours at $375 per hour ; Rosenbloom - 12.75 hours at $400 per hour; Smith - 45.25 hours at $280 per hour;*fn65 Steinberg - 10.00 hours at $375 per hour. The corresponding amounts are as follows: Lee - $2,625.00; Rosenbloom -$5,100.00; Smith - $12,670.00; Steinberg - $3,750.00, all of which total $24,145.00.

G. Expert Fees

Pursuant to section 1988, courts only have the discretion to tax expert fees as costs in actions brought under 42 U.S.C. §§ 1981 and 1981a, not section 1983.*fn66 The Supreme Court has held that section 1988 does not authorize courts to shift expert fees to the losing party as part of a "reasonable attorney's fee" in a section 1983 case.*fn67 "After Casey, Congress enacted the Civil Rights Act of 1991, which amended 42 U.S.C. § 1988 to give courts discretion to shift expert fees to the losing party in cases arising under 42 U.S.C. §§ 1981 and 1981(a). As Congress explicity limited the amendment to cases arising under § 1981, Casey still prohibits the award of expert fees in § 1983 cases."*fn68 Consequently, plaintiffs cannot recover any amounts paid in expert witness fees.


For the reasons stated above, the Settling Plaintiffs are awarded $56,360.25 in attorneys' fees ($32,215.25 in litigation fees and $24,145.00 in fees related to the fee application) and zero costs.*fn69 The Clerk of the Court is directed to close the motion for attorneys' fees (Docket Entry #80).


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