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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 ...

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