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Ognibene v. Parkes

United States District Court, S.D. New York

July 22, 2014

TOM OGNIBENE et al., Plaintiffs,
S.J. JOSEPH P. PARKES et al., Defendants.



Tom Ognibene and his co-plaintiffs[1] (collectively, "Plaintiffs") filed suit in February 2008 pursuant to 42 U.S.C. § 1983 against the City of New York, asserting twenty claims that challenged the constitutionality of provisions of the New York City Administrative Code embodying the City's Campaign Finance Act (the "CFA"). After stipulating to an entry of judgment and partial summary judgment, Plaintiffs prevailed on two of the twenty counts. Moving pursuant to 42 U.S.C. § 1988, Plaintiffs now seek to recover $232, 814.25 in attorneys' fees and $11, 916.80 in costs and expenses. The Court has subject matter jurisdiction of this action pursuant to 42 U.S.C. § 1331. The Court has considered carefully all of the parties' submissions and arguments. For the following reasons, Plaintiffs' motion is granted in part.


In April 2008, Plaintiffs moved for preliminary injunctive relief on six of their twenty claims, challenging the "Pay-to-Play" provisions of the CFA. (Decl. of Jon Pines ¶ 5.) Defendants subsequently interposed cross-motions for summary judgment on those six claims. (Id. at ¶ 7.) On February 6, 2009, the Court granted summary judgment in favor of Defendants, denying Plaintiffs' motion for preliminary injunctive relief and dismissing six corresponding counts of the complaint. (Id.) Proceedings on all of the remaining counts were then stayed pending an appeal of the summary judgment decision to the Second Circuit and Supreme Court decisions in two campaign finance cases ( Citizens United v. FEC , 558 U.S. 310 (2010) and Arizona Free Enterprise Club's Freedom PAC v. Bennett , 131 S.Ct. 2806 (2011) ("Bennett")). (Pls.' Mem. Supp. 3). On appeal, the Court of Appeals for the Second Circuit affirmed the dismissal of all six counts. Ognibene v. Parkes , 671 F.3d 174 (2d Cir. 2012).

In June 2011, the Supreme Court issued its decision in Bennett, holding certain types of matching funds provisions unconstitutional. Bennett , 131 S.Ct. at 2828. In response to Bennett, Defendants agreed to stipulate to the entry of a partial judgment on one count related to the "Rescue Fund" provisions of the CFA. (Decl. of Jon Pines ¶ 12). The parties agreed to litigate the remaining counts, related to the "Sure Winner" and "Expenditure Limit Relief" provisions, by cross-motions for summary judgment. (Id. at ¶ 14.)

On April 4, 2013, the Court granted partial summary judgment in favor of Plaintiffs on two counts and denied the motion for summary judgment in all other respects. The Court also granted summary judgment in favor of Defendants on two other counts. Plaintiffs thereafter agreed to stipulate to the dismissal of all other remaining counts. (Id. at ¶ 20.)


Reasonable Attorneys' Fees

Pursuant to 42 U.S.C. § 1988, "the court, in its discretion, may allow the prevailing party... a reasonable attorney's fee as part of the costs." 42 U.S.C.S. § 1988(b) (LexisNexis 2013). In determining what constitutes a reasonable fee award, courts first calculate the "lodestar figure, " which represents the presumptively reasonable fee. Perdue v. Kenny A. Ex rel. Winn , 559 U.S. 542, 551-52 (2010). The lodestar figure is computed by "multiplying a reasonable hourly rate by the number of reasonably expended hours." Bergerson v. New York State Office of Mental Health, Central New York Psychiatric Center , 652 F.3d 277, 289 (2d Cir. 2011). Accordingly, the Court must determine (1) what hourly rate is reasonable, and (2) what number of hours expended is reasonable in light of Plaintiffs' degree of success. Barbour v. City of White Plains, No. 07 Civ. 3014, 2013 WL 5526234, at *3 (S.D.N.Y. 2013).

Reasonable Hourly Rate

"To determine the reasonable hourly rate for each attorney, courts must look to the market rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'" Heng Chan v. Sung Yue Tung Corp., No. 03 Civ. 6048 , 2007 WL 1373118, at *2 (S.D.N.Y. 2007) (quoting Gierlinger v. Gleason , 160 F.3d 858, 882 (2d Cir. 1998)). The burden is on the movant to show "by satisfactory evidence-in addition to the attorney's own affidavits-that the requested hourly rates are the prevailing market rates." Id. at *3 (quotations omitted).

"A reasonable starting point for determining the hourly rate for purposes of a lodestar calculation is the attorney's customary rate." Parrish v. Sollecito , 280 F.Supp.2d 145, 169-70 (S.D.N.Y. 2003). The Bopp Law Firm ("Bopp") is an Indiana-based firm that specializes "in constitutional and civil rights litigation in various state and federal courts, including election law cases." (Decl. of James Bopp, Jr. ¶). Bopp's practice is to request the "[prevailing] market rate of the community in which the fee petition is filed." (Id. ¶ 9). Here, Bopp requests hourly rates ranging from $250 to $525 based on the particular attorney's experience level. These requests are supported by declarations and affidavits attesting that Bopp's rates are consistent with this District's prevailing market rates for the type of work performed. (See Decl. of Charles Moerdler ¶¶ 4-7; Decl. of Steven Mintz ¶¶ 3-6.) Over the last ten years, courts in this District have awarded rates to experienced civil rights attorneys in the range of $250 to $600 and to associates in the range of $200 to $350, "with average rates increasing over time." Greene v. City of New York, No. 12 Civ. 6427, WL 5797121, at *3 (reviewing Southern District cases to determine the "prevailing market rate"). Bopp's hourly rates are thus consistent with reasonable hourly rates for comparable work in this District.

Defendants argue that awarding Southern District rates to Bopp, an Indiana-based law firm, would lead to an unjustifiable windfall. See Arbor Hill Concerned Citizens Ass'n v. County of Albany , 369 F.3d 91 (2d Cir. 2003) (courts should not award fees commensurate with the forum rate if this rate would lead to a windfall). Defendants propose that the Court adopt what Defendants characterize as a "rough justice" approach, awarding Plaintiffs a blended hourly rate of $350. (Defs.' Mem. Opp'n 6-8.)

While it is true that Bopp is an Indiana-based firm, it is a specialized law firm that customarily practices in forums across the country and regularly receives prevailing market rates in higher-paying forums. See, e.g., Lux v. Judd , 868 F.Supp.2d 519, 532 (E.D. Va. 2012); Thalheimer v. City of San Diego, No. 09 Civ. 2862, 2012 WL 1463635, at *8 (S.D. Cal. Apr. 26, 2012). Furthermore, averaging the rates of associates and partners of a law firm with varying degrees of experience to produce a "blended" hourly rate for the sake of expedience is unnecessary here and, given Plaintiffs' submission of time records showing each attorney's work and hourly rates, would be inconsistent with this District's practice of considering the prevailing market rates "for similar services by lawyers of ...

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