UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 5, 2012
BARBARA FINCH, INDIVIDUALLY, ON BEHALF OF MANNY MOE AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, CAROL JORDAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND BARBARA ORTIZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES; JOHN A. JOHNSON, INDIVIDUALLY AND IN HIS CAPACITY AS THE COMMISSIONER OF THE NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES; THE CITY OF NEW YORK, ADMINISTRATION FOR CHILDREN'S SERVICES; WILLIAM C. BELL, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER OF THE ADMINISTRATION FOR CHILDREN'S SERVICES OF THE CITY OF NEW YORK; DAVE R. PETERS, INDIVIDUALLY AND IN HIS CAPACITY AS DIRECTOR, STATE CENTRAL REGISTER, NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, DIVISION OF DEVELOPMENT AND PREVENTION SERVICES; JANE DOE 1, INDIVIDUALLY AND IN HER CAPACITY AS A SUPERVISOR OF THE STATE CENTRAL REGISTER; JANE DOE 2, INDIVIDUALLY AND IN HER CAPACITY AS AN EMPLOYEE OF THE STATE CENTRAL REGISTER; JOHN DOE 1, INDIVIDUALLY AND IN HIS CAPACITY AS A SUPERVISOR OF ADMINISTRATION FOR CHILDREN'S SERVICES; AND JOHN DOE 2, INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF ADMINISTRATION FOR CHILDEREN'S SERVICES, DEFENDANTS.
The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
OPINION AND ORDER
On February 24, 2004, plaintiffs brought a class action lawsuit
against, inter alia, the New York State Office of Children and Family
Services ("OCFS"); John A. Johnson, Commissioner of the OCFS; and Dave
R. Peters, Director of the Statewide Central Register of Child Abuse
and Maltreatment (the "SCR") (collectively the "State Defendants" or
"defendants").*fn1 Plaintiffs alleged that the
inordinate delays in the scheduling of administrative hearings -- in
which class members could challenge their listing as subjects of
"indicated" reports of child abuse/maltreatment in the SCR -- violated
their due process rights. After this Court certified a class, which
was subsequently divided into two subclasses (Subclass A and Subclass
B), the parties settled all outstanding claims. Pursuant to 42 U.S.C.
§ 1988 ("section 1988"), plaintiffs now move for the following
attorneys' fees and costs: $711,781.25 in attorney's fees and
$16,343.10 in costs relating to the Subclass A litigation; $50,000.00
in attorneys' fees and $639.00 in costs for first year monitoring
services rendered with regard to the Subclass B litigation; $18,685.42
in attorneys' fees incurred in recovering attorneys' fees
costs under section 1988; and $7,554.87 for additional fees and costs
incurred in recovering fees and costs under section 1988.*fn2
For the following reasons, plaintiffs' motion is granted but
not in the amounts requested.
This case was originally assigned to the Honorable Richard C. Casey, who died on March 22, 2007. While under the supervision of Judge Casey, plaintiffs filed their First Amended Complaint on June 14, 2004. The State Defendants moved to dismiss the First Amended Complaint in its entirety while plaintiffs cross-moved to have New York Social Services Law § 422(6) ("NY SSL § 422(6)") declared unconstitutional.*fn3 Although these motions were fully submitted as of April 8, 2005, they were not decided until after the case had been reassigned to my docket on May 25, 2007.*fn4
In an Opinion and Order dated July 3, 2007, the motion to dismiss was decided and the following claims were dismissed: "(1) all claims against the OCFS; (2) all claims brought under the Ninth Amendment of the United States Constitution; (3) claims for money damages against the individual State defendants in their official capacities; (4) claims for money damages against the individual State defendants in their individual capacities; and (5) claims seeking injunctive relief for past conduct."*fn5 Any claims against the State Defendants based on state statutory violations were also dismissed.*fn6 Plaintiffs' cross-motion seeking declaratory relief was withdrawn and deemed moot.*fn7 Thus, only the claim for prospective injunctive relief against the individual State Defendants survived the motion to dismiss.*fn8
Plaintiffs then moved for class certification. On August 11, 2008, this Court certified the following class: all persons: (1) who are working or desire to work or to be licensed in the childcare field; (2) who are now, or in the future will be, listed on the Statewide Central Register as subjects of indicated reports of child abuse that were investigated by and indicated by a designated investigative agency; (3) who timely requested amendment of the indicated reports; and (4) whose requests for amendment have not been disposed of.*fn9 Plaintiffs then moved, and the State Defendants cross-moved, for summary judgment. Both motions were denied in a Memorandum Opinion and Order dated December 18, 2008.*fn10
Plaintiffs filed their Third Amended Complaint on August 17, 2009. The Third Cause of Action in the Third Amended Complaint defined the claims of persons whom the parties later designated as members of Subclass B. In the Stipulation of Partial Settlement of Class Action ("Stipulation of Settlement"), signed by the Court on February 5, 2010, the members of the class previously certified in this action were designated as members of Subclass A and a separate Subclass B was certified with regard to persons who were incorrectly classified by the OCFS as having waived the right to an administrative hearing. After a fairness hearing was held on April 20, 2010, the Subclass B Stipulation of Settlement was finally approved. Class counsel was appointed to monitor compliance.
After the Subclass B settlement was approved, the parties resolved the issue of attorneys' fees and class counsel was paid $400,000.00 for work done on behalf of the Subclass B members through the effective date of the Stipulation of Settlement. The Stipulation of Settlement further provided that class counsel could seek additional attorneys' fees for work done monitoring the State Defendants' compliance with the terms of the settlement. Monitoring fees for the first year of monitoring were capped at $50,000.00.*fn11
The remaining causes of action in the Third Amended Complaint applicable to Subclass A members were scheduled to go to trial on October 27, 2010. On the eve of trial, the parties informed the Court that they intended to settle the two remaining causes of action (the First and Second Causes of Action). Accordingly, the parties entered a Stipulation of Settlement of Class Action, dated November 4, 2010 (the "State Settlement Agreement"). A fairness hearing was scheduled for February 7, 2011, to evaluate the fairness, reasonableness and adequacy of both the State and City settlements.*fn12 At the fairness hearing, no one objected to the proposed settlements. On February 17, 2011, the Court gave its final approval of the State Settlement Agreement, thereby resolving the Subclass A members' outstanding claims. The instant motion followed.
III. LEGAL STANDARD
A "prevailing party" in a civil rights action is entitled to an award
of attorneys' fees and costs.*fn13 Furthermore, a
prevailing party is also entitled to reimbursement for time reasonably
expended in preparing his attorneys' fee application.*fn14
A "prevailing party" is a party who achieves a "'material
alteration of the legal relationship of the parties'. . .
."*fn15 District courts are afforded considerable
discretion in determining the amount of reasonable attorneys' fees in
any given case.*fn16 The methodology to be used in
determining those amounts is the
"lodestar" approach. In addition, "the fee applicant bears the burden
of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates."*fn17
The Supreme Court has endorsed the "lodestar" approach as the superior
method to be used in determining attorneys' fees, describing it as
"'the guiding light of . . . fee-shifting jurisprudence.'"*fn18
Disfavoring the Johnson approach and its twelve,
case-specific factors*fn19 as being too
Supreme Court has stated that "there is a 'strong presumption' the lodestar figure is reasonable[.]"*fn21 In applying Perdue, the Second Circuit has stated:
Both this Court and the Supreme Court have held that the lodestar -- the product of a reasonable hourly rate and the reasonable number of hours required by the case -- creates a "presumptively reasonable fee." While the lodestar is not always conclusive, its presumptive reasonability means that, absent extraordinary circumstances, failing to calculate it as a starting point is legal error. A detailed explanation of the lodestar calculation is unnecessary, but compliance with the Supreme Court's directive that fee award calculations be "objective and reviewable," implies the district court should at least provide the number of hours and hourly rate it used to produce the lodestar figure.*fn22
According to the Supreme Court, the lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case. [Furthermore], the lodestar method is readily administrable; and unlike the Johnson approach, the lodestar calculation is "objective," and thus cabins the discretion of trial judges, permits meaningful judicial review, and produces reasonably predictable results.*fn23
The aim of section 1988 "is to enforce the covered civil rights statutes, not to provide 'a form of economic relief to improve the financial lot of attorneys.'"*fn24
Thus, "a 'reasonable' fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case."*fn25 There is a "strong" presumption that "the lodestar method yields a fee that is presumptively sufficient to achieve this objective."*fn26
"In determining what fee is reasonable, the court takes account of claimed hours that it views as 'excessive, redundant, or otherwise unnecessary.'"*fn27
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."*fn28 "In reducing the 'lodestar' amount, the court may exclude the excessive and unreasonable hours from its calculation by making an across-the-board reduction, or percentage cut, in the amount of hours."*fn29
There is no rule requiring proportionality between the amount of fees requested and the damages recovered. The Second Circuit has stated:
While 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.*fn30
"Reasoning that a rule calling for proportionality between the fee and the monetary amount involved in the litigation would effectively prevent plaintiffs from obtaining counsel in cases where deprivation of a constitutional right caused injury of low monetary value, [courts] have repeatedly rejected the notion that a fee may be reduced merely because the fee would be disproportionate to the financial interest at stake in the litigation."*fn31
"'[T]he 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."*fn32 "Hours spent on unsuccessful fee-shifting claims, like those spent on claims wholly ineligible for fee-shifting, must be excluded from the reasonable hours spent on the case when calculating the lodestar."*fn33 As recognized by the Supreme Court, where 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. This will be true even where the plaintiff's claims were interrelated, non-frivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.*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
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."*fn37
"The reasonable hourly rate is the rate a paying client would be
willing to pay."*fn38 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.'"*fn39
"The relevant community to which the court should look is the district in
which the case was brought."*fn40 To compensate for
the delay in payment, the hourly rates to be used should be "'current
rather than historic hourly rates.'"*fn41 In sum,
determining a reasonable hourly rate, courts "should bear in mind that
a reasonable, paying client wishes to spend the minimum necessary to
litigate the case effectively."*fn42
A. Counsel's Hourly Rate
Thomas Hoffman is the plaintiffs' lead attorney. He works in a very small law firm*fn43 and has forty-two years experience in the fields of civil rights and family law. Plaintiffs seek to compensate Hoffman at the rate of $550 per hour, citing DeCurtis v. Upward Bound International, Inc. for the proposition that "rates awarded to experienced civil rights attorneys over the past ten years have ranged from $250 to $600 . . . ."*fn44 Defendants object to this rate as unreasonably high.*fn45 Defendants point to E.S. v. Katonah-Lewisboro School District, where the hourly rate for a managing partner of a three-attorney law firm was reduced from $415 to $350 per hour. In making this reduction, the court relied, in part, on Heng Chan v. Sung Yue Tung Corp.,*fn46 stating as follows:
Although courts in this jurisdiction have awarded hourly rates exceeding $400 to attorneys in civil rights cases, such awards are only warranted in "unusually difficult and complex" cases. The plaintiff in Heng Chan was represented pro bono by Skadden, Arps, Slate, Meagher and Flom, LLP, one of the largest and most well-regarded law firms in the world. Lead counsel was a partner with over sixteen years of litigation experience. Moreover, the case involved "a host of witnesses and parties, numerous boxes of documents, and depositions and investigations conducted in four languages." Lead counsel received a fee award of $450 per hour.*fn47
Defendants also point to Davis v. City of New York, a recent decision where this Court approved of a rate of $425.00 per hour for the plaintiffs' most senior attorney, who had thirty-one years of experience.*fn48
In determining reasonable hourly rates for civil rights attorneys, this Court has stated it is appropriate to determine whether the billing attorneys are "more like members of a large New York City law firm than they are like members of a nonprofit organization or a two to three-person obscure law firm."*fn49 Here,
Hoffman's billing practices reflect the fact that he operates, in large part, as a solo practitioner.*fn50 Although plaintiffs argue that the requested rate of $550 per hour is "substantially less" than the rates charged by partners in large law firms, it is not that much less than the maximum rate, $600 per hour, cited by courts in this Circuit.*fn51 And unlike large law firms, where less demanding tasks are delegated to junior associates, Hoffman did most of the work himself.*fn52 However, there is something to be said for solo practitioners and very small firms that avoid the often duplicative billing that is found when junior and senior attorneys work together and both bill for tasks that one attorney could have handled.
Rates of $550 per hour or more are reserved for extraordinary attorneys held in unusually high regard by the legal community.*fn53 The $550 hourly rate was previously applied by this Court only once, in Scott v. City of New York.*fn54
In Scott, the plaintiffs sought attorneys' fees for a well-known attorney with uniquely strong trial skills.*fn55 Although the Second Circuit approved the hourly rate previously determined by this Court, it vacated the fee award on other grounds.*fn56
Furthermore, the rate of $450 per hour was charged by Hoffman in monitoring defendants' compliance with the Subclass B settlement.*fn57 I cannot discern a valid reason for the discrepancy in the rates charged for Subclass A and Subclass B. To give plaintiffs the requested rate of $550 per hour for Hoffman's time would inflate the fee award beyond what a reasonable, paying client -- "wish[ing] to spend the minimum necessary to litigate the case effectively" -- would be willing to pay.*fn58 Therefore, I agree with the hourly rate proposed by the defendants and find that Hoffman should be compensated at the rate of $450 per hour. The net effect is an overall reduction in fees in the amount of $123,742.00.
B. Unsuccessful Claims
1. Plaintiffs' Opposition to Defendants' Motion to Dismiss
The State Defendants filed a motion to dismiss and, in the alternative, for summary judgment. Plaintiffs opposed this motion and cross-moved to have NY SSL § 442(6) declared unconstitutional, a claim that was later withdrawn. The State Defendants prevailed in large part as the Court dismissed all claims for money damages as well as claims seeking injunctive relief for past conduct and claims based on violations of state statutory law. The only claim that survived was plaintiffs' claim for prospective injunctive relief. Plaintiffs propose an across-the-board percentage reduction and a dollar-for-dollar reduction for time incurred by counsel on unsuccessful claims.
In Addendum 3, plaintiffs quantified the amount of fees incurred in opposing the State Defendants' motion to dismiss. The total amount of time is 78.67 hours, all of which is for Hoffman. Thus, the total amount of fees, adjusted for the decrease in Hoffman's hourly rate, is $35,401.50. Plaintiffs propose either no adjustment or a reduction of fifteen percent which plaintiffs compute to be $7,355.00.*fn59 However, given that the State Defendants prevailed on the vast majority of claims asserted by plaintiffs, I find that only forty percent is compensable. In other words, sixty percent of the adjusted total of $35,401.50 is not subject to fee-shifting due to plaintiffs' lack of success. The net adjustment is a reduction in fees in the amount of $21,240.90.
Similarly, both sides have identified particular time charges incurred for time spent by plaintiffs pursuing claims for money damages. Plaintiffs have summarized some of these charges in Addendum 2, while the defendants merely identified the dates of entries to which they are objecting. The total amount in Addendum 2 is 19.50 hours, which includes all of the entries identified by defendants except for the entry on 10/24/2004. That entry, which was for research regarding personal involvement, represents four hours which, at Hoffman's reduced hourly rate, translates to $1,800.00. Thus, the reduction in fees for time spent researching unsuccessful claims is $10,575.00 ((19.50 hours x $450/hour) $1,800). In addition, defendants object to the inclusion of fees regarding plaintiffs' unsuccessful cross-motion for summary judgment. The total time charges for that motion amount to 30.17 hours. At Hoffman's adjusted hourly rate, the total dollar amount is $13,576.50. It is plaintiffs' position that only half of this amount should be deducted because "the same research was later used in trial preparation and in negotiating the terms of the final settlement."*fn60 Because I agree with plaintiffs, compensable fees will be further reduced by $6,788.25. Thus, the reduction in fees for specifically identified, non-compensable entries is $17,363.25, while the total combined reduction for plaintiffs' unsuccessful claims is $38,604.15.
C. Overlapping Claims
1. Research and Drafting the Complaint
The original Complaint filed on February 27, 2004, included claims against both the State Defendants and the City Defendants. Plaintiffs have summarized these charges in Addendum 1. The total number of hours for drafting the Complaint, all of which were incurred by Hoffman, is 20.50 hours. At Hoffman's adjusted hourly rate of $450 per hour, the total dollar amount is $9,225.00. Plaintiffs argue that the State claims predominated over the City claims in the Complaint and suggest a proposed reduction of fifty percent. As with plaintiffs' mostly unsuccessful opposition to defendants' motion to dismiss, I find that sixty percent of the adjusted total is non-compensable. Accordingly, a reduction in the amount of $5,535.00 is appropriate for this issue.
2. E-mails to Counsel for the City of New York and Others
Defendants object to those time charges relating to e-mails and telephone calls to Abby Goldenberg counsel for the City Defendants. Defendants have identified two entries, one on 7/11/2007 (0.33 hours) and the other on 8/20/2007 (0.17 hours).*fn61 Plaintiffs have agreed they will not seek compensation for this time. However, in reviewing Hoffman's detailed time sheets, I found several more entries reflecting communications with Goldenberg. On 3/11/2008, Hoffman billed 0.17 hours for reviewing an e-mail from Goldenberg. He billed the same amount (0.17 hours) the next day, 3/12/2008, for e-mails to and from Goldenberg. On 11/10/2008, there is a time entry for a telephone conversation with Goldenberg for 0.17 hours. The total reduction for Hoffman's correspondence with counsel for the City of New York is 1.01 hours which translates at $450 per hour to $451.01.
3. Inadvertent Billing for Mystery Reply Memorandum
Defendants have identified time charges in June 2005 for the research and drafting of a reply memorandum of law unrelated to this case. Plaintiffs concede that this reply memorandum was related to the litigation against the City Defendants and should be excluded. The total time charges amount to 11.00 hours, resulting in a reduction of $4,950.00.
4. March 2004 Discovery
In 2004, Hoffman billed for his work in drafting interrogatories and a notice to produce. These entries are dated 3/4/2004 (1.25 hours), 3/5/2004 (1.25 hours), and 3/8/2004 (2.00 hours). This discovery addressed both State and City claims.*fn62 Furthermore, the notice to produce and interrogatories were not served because discovery was stayed pending defendants' motion to dismiss. However, the drafts were used as the basis for plaintiffs' final discovery demands, which were served upon the State Defendants. Plaintiffs suggest a reduction of fifty percent for this matter. I will therefore reduce the fees by $1,012.50.
5. Supplemental Complaint
Defendants argue that work done in connection with the "First Supplemental Complaint" should be excluded. The associated time entries are dated 12/17/2004 (1.00 hour); 12/20/2004 (0.50 hours); and 12/21/2004 (1.00 hour). Although not filed electronically, the First Supplemental Complaint was indeed served upon the State Defendants. Plaintiffs state that the failure to file the First Supplemental Complaint electronically was "inadvertent" and therefore object to excluding this item.*fn63 If this item were excluded, a reduction in the amount of $1,125 would be warranted. Because the amount of the adjustment is de minimus, and in light of all the other adjustments made, I will not further reduce the compensable attorneys' fees in this case.
D. Subclass B Monitoring
Class counsel was appointed to monitor defendants' compliance with the
terms of the Subclass B settlement. Although the fees for the first
year of monitoring totaled $77,551.77,*fn64 there is a
$50,000 cap on the amount of fees to be reimbursed.*fn65
Accordingly, plaintiffs are hereby awarded $50,000.00 in fees
and $639.00 in costs for the first year of Subclass B
An award of costs under section 1988 "normally include[s] those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged fee-paying clients."*fn67 "The rationale for this rule is that attorney[s'] fees include expenses that are 'incidental and necessary' to the representation, provided they are 'reasonable.'"*fn68 Accordingly, "[i]dentifiable, out-of-pocket disbursements for items such as photocopying, travel, and telephone costs are generally taxable under § 1988 and are often distinguished from nonrecoverable routine office overhead, which must normally be absorbed within the attorney's hourly rate."*fn69
Here, plaintiffs seek costs, exclusive of non-taxable expert witness fees, in the amount of $17,014.05, for photocopying, mailing, court fees, etc.*fn70 Because this amount is reasonable given the length of this litigation, plaintiffs are awarded full costs.
In sum, plaintiffs seek $787,989.59 in attorneys' fees and $17,014.05 in costs. A reduction in the amount of $123,742.00 was made to adjust Hoffman's hourly rate. A combined reduction of $38,604.15 was made to reflect plaintiffs' unsuccessful claims. Further reductions to account for plaintiffs' overlapping claims were made in the total amount of $11,948.51. Accordingly, plaintiffs are hereby awarded total attorneys' fees of $613,694.93 and total costs of $17,014.05, for a combined award of $630,708.98. The Clerk of the Court is directed to close plaintiffs' motion for attorneys' fees and costs (Docket Entry #111).