United States District Court, E.D. New York
For Mary Jo C., Plaintiff: William M. Brooks, LEAD ATTORNEY, Touro College Jacob D. Fuchsberg Law Center, Central Islip, NY; Michelle K. Caldera, Civil Rights Clinic, Touro College, Jacob D Fuchsberg Law Center, Central Islip, NY.
For Thomas P. Dinapoli, Respondent: Ralph Pernick, LEAD ATTORNEY, New York State Attorney General, Mineola, NY.
OPINION AND ORDER
SANDARA J. FEUERSTEIN, United States District Judge.
On December 23, 2009, plaintiff Mary Jo C. (" plaintiff") commenced this action against the New York State and Local Retirement System (" the NYSLRS") and the Central Islip Public Library (" the Library") pursuant to Title II of the Americans with Disabilities Act (" ADA"), 42 U.S.C. § § 12131, et seq., and Section 296 of the New York Executive Law. By opinion and order dated May 5, 2011, I, inter alia, (1) granted the motion of the NYSLRS seeking dismissal of plaintiff's claims against it pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to the extent of dismissing plaintiff's claims against the NYSLRS in their entirety as barred by the doctrine of sovereign immunity; and (2) granted the Library's motion seeking dismissal of plaintiff's claims against it pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to the extent of (a) dismissing plaintiff's ADA claims against the Library for failure to state a claim for relief and (b) dismissing plaintiff's state law claim against the Library pursuant to 28 U.S.C. § 1367(c)(3). Judgment was entered against plaintiff on May 9, 2011.
By mandate entered February 26, 2013, the United States Court of Appeals for the Second Circuit, inter alia, affirmed so much of the opinion and order as dismissed plaintiff's ADA claim against the Library, but vacated so much of the opinion and order as dismissed plaintiff's ADA claim against the NYSLRS and remanded the action " with instructions * * * to grant the plaintiff leave to amend her complaint * * * to allege facts supporting her claim that she was disabled, and to attempt to state a claim invoking the rule of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and for further proceedings consistent with [its] opinion." (Docket Entry [" DE" ] 36 at 57). By order dated May 3, 2013, I granted the parties' joint motion to stay the proceedings in this case upon remand pending a determination by the United States Supreme Court on plaintiff's petition for a writ of certiorari to the extent of marking this case off of my calendar with leave to reopen on ten (10) days notice within thirty (30) days of the Supreme Court's determination. By order dated November 25, 2013, I granted plaintiff's application, in essence, for an extension of time to reopen this case to the extent of reopening this case, provided that plaintiff serve and file an amended complaint in accordance with the Second Circuit's mandate on or before December 16, 2013.
On December 9, 2013, plaintiff filed an amended complaint against Thomas P. DiNapoli (" DiNapoli" or " defendant"), in his official capacity as the New York State Comptroller, alleging, inter alia, (1) that by failing to waive the filing requirements for the filing of disability retirement benefits, the NYSLRS failed to provide a requested reasonable accommodation to plaintiff in violation of the ADA; and (2) that New York Retirement and Social Security Law § 605(b) violates the ADA, the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. Between December 18, 2013 and April 28, 2014, defendant sought, on plaintiff's consent, four (4) extensions of time to file a response to the amended complaint, basing the last three (3) requests upon the parties' purported attempts to resolve this action. (DE 44-46, 48). The Honorable Arlene R. Lindsay, United States Magistrate Judge, granted all of defendant's requests, ultimately granting defendant until May 5, 2014 to file a response to the amended complaint. (DE 12/19/2013, 01/31/2014, 02/26/2014 and 04/29/2014). In addition, defendant sought, on plaintiff's consent, to adjourn a status conference scheduled to be held before me on May 5, 2014 on the basis that " [t]he parties [were] attempting to resolve all issues in this action." (DE 47). By electronic order dated April 29, 2014, defendant's application was denied. However, by electronic order dated May 1, 2014, plaintiff's subsequent application to adjourn the May 5, 2014 status conference due to a death in her lead counsel's family was granted and the conference was adjourned until May 12, 2014.
During the May 12, 2014 conference before me, the parties advised, inter alia, that they resolved all issues in this action except for the issue of attorney's fees. A further pretrial conference was scheduled to be held before me on June 16, 2014. On June 11, 2014, plaintiff filed a joint application to adjourn the conference " to enable the parties to negotiate an agreement [on the issue of attorney's fees] over the next month." (DE 51). By electronic order dated June 12, 2014, the application was granted, the conference was adjourned until July 15, 2014 and the parties were advised that no further adjournments would be granted absent exceptional circumstances.
On July 11, 2014, plaintiff filed: (1) a stipulation and proposed order, inter alia, resolving the merits of the actions, but not the issue of attorney's fees, costs and disbursements, and unilaterally extending plaintiff's time to file an application seeking attorney's fees, costs and disbursements to " any time through September 15, 2014[, ]" (DE 52, ¶ 4); and (2) an application to cancel the July 15, 2014 conference, (DE 53). By electronic order dated July 14, 2014, I denied plaintiff's application to cancel the conference; directed plaintiff to file an application seeking attorney's fees at the conference on July 15, 2014; and advised that any application for attorney's fees filed by plaintiff after the conference would be dismissed with prejudice.
During the July 15, 2014 conference, inter alia, plaintiff submitted the application for attorney's fees; defendant was directed to serve and file any opposition to plaintiff's application by July 29, 2014; and plaintiff was directed to serve and file a reply to any opposition by August 12, 2014. Pending before me is plaintiff's motion for attorney's fees pursuant to 42 U.S.C. § § 1988 and 12205. For the reasons set forth below, plaintiff's motion is granted to the extent set forth herein.
Plaintiff seeks to recover ninety-seven thousand five hundred forty dollars and fifty cents ($97, 540.50) in attorney's fees based upon, inter alia : (a) an hourly rate of four hundred fifty dollars ($450.00) for services performed by William M. Brooks, the supervising attorney for the Mental Disability Law Clinic of Touro College Jacob D. Fuchsberg Law Center (" Touro"), (b) for one hundred ninety-six and nine-tenths (196.9) hours expended by him on plaintiff's behalf " on matters relating to the claims against the [NYSLRS][, ]" (Brooks Decl., ¶ 2); (c) an hourly rate of one hundred fifty dollars ($150.00) for services performed by Michael Recco, " a staff attorney, " (id., ¶ 14), (d) for fourteen and four-tenths (14.4) hours expended by him on plaintiff's behalf in this case; and (e) an hourly rate of eighty-five dollars ($85.00) for services performed by Deanna LaRocco, " a law student intern, " (id.), (d) for seventy-nine and seven-tenths (79.7) hours expended by her on plaintiff's behalf in this case.
Under the " American Rule" " historically applied" by courts in the United States, Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 186 (2d Cir. 2008), " parties are ordinarily required to bear their own attorney's fees * * * absent explicit statutory authority." Buckhannon Bd. and Care Home. Inc. v. West Virginia Dep't of Health and Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). superceded on other grounds by Open Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. As relevant here, Congress has authorized the award of attorney's fees to the " prevailing party" in actions under, inter alia, the ADA and Section 1983. Specifically, Section 12205 of Title 42 of the United States Code provides, in relevant part, that " [i]n any action * * * commenced pursuant to this chapter, the court * * *, in its discretion, may allow the prevailing party * * * a reasonable attorney's fee, including litigation expenses, and costs * * *." Similarly, Section 1988(b) of Title 42 of the United States Code provides, in relevant part, that " [i]n any action or proceeding to enforce a provision of section * * * 1983 * * * of this title, * * * the court, in its discretion, may allow the prevailing party * * * a reasonable attorney's fee as part of the costs * * *."
In cases under federal statutes authorizing the court to award " a reasonable attorney's fee" to a prevailing private party, e.g., actions under the ADA, 42 U.S.C. § 12205; Titles II and VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000a-3(b) and 2000e-5(k), respectively; the Age Discrimination in Employment Act, 29 U.S.C. § 626(b); the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3613(c)(2); the Voting Rights Act Amendments of 1975, 42 U.S.C. § 1973. l (e); the Rehabilitation Act of 1973, 29 U.S.C. § 794a(b); the Individuals with Disabilities Education Act, 20 U.S.C. § 1415(i)(3)(B)(i); the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988(b), etc., " the governing principles and procedures are essentially the same." Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009);
see also Buckhannon, 532 U.S. at 603 n. 4, 121 S.Ct. 1835 (" We have interpreted the fee-shifting provisions [in Title VII, the Voting Rights Act Amendments of 1975 and Section 1988] consistently * * *.")
It is undisputed that plaintiff is a " prevailing party" in this action as against the NYSLRS,
see generally Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835, 149 L.Ed.2d 855, and, thus, may be awarded a reasonable attorney's fee under Sections 1988(b) and 12205 of Title 42 of the United States Code.
" In calculating attorney's fees, the district court must first determine the 'lodestar--the product of a reasonable hourly rate and the reasonable number of hours required by the case--[which] creates a presumptively reasonable fee.'" Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014) (brackets in original) (quoting Millea v. Metro-North R.R., 658 F.3d 154, 166 (2d Cir. 2011)); see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (" The most useful starting point for determining the amount of a reasonable [attorney's] fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."); Bergerson v. New York State Office of Mental Health. Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 289 (2d Cir. 2011) (" Attorneys' fees are awarded by determining a presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours.") The burden is on the fee applicant to submit evidence to support the number of hours expended and the rates claimed. Hensley, 461 U.S. at 437, 103 S.Ct. 1933.
A. Reasonable Hourly Rate
In calculating a " presumptively reasonable [attorney's] fee, "  Arbor Hill, 522 F.3d at 190, courts must consider " all of the case-specific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate." Id. (emphasis in original); see also Barfield v. New York
City Health and Hosps. Corp., 537 F.3d 132, 151-52 (2d Cir. 2008) (accord). " [A] presumptively reasonable [attorney's] 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.'" ...