United States District Court, E.D. New York
MEMORANDUM AND ORDER
F. BIANCO United States District Judge.
Robert Houston (“plaintiff”) brought this action
against defendants Thomas Cotter (“Officer
Cotter”), John Weiss (“Officer Weiss”), and
the County of Suffolk (“the County”)
(collectively, “defendants”) pursuant to 42
U.S.C. § 1983 (“Section 1983”). Plaintiff
commenced suit on July 26, 2007 by filing a pro se
complaint against Officers Cotter and Weiss alleging that
they used excessive force against him on January 11, 2007.
(ECF No. 1.) Counsel from the law firm Cleary Gottlieb Steen
& Hamilton LLP (“Cleary Gottlieb”) were
subsequently designated to represent plaintiff (ECF No. 51),
plaintiff filed an amended complaint on December 16, 2011
(ECF No. 68) that added a Due Process claim against the
County for implementing a policy whereby corrections officers
confined plaintiff to suicide watch for two weeks as
case was tried before a jury from February 23, 2015 to March
9, 2015. On March 9, 2015, the jury returned a verdict in
plaintiff's favor as to (1) his excessive force claim
against Officer Cotter, awarding $1, 000 in compensatory
damages and $4, 000 in punitive damages; and (2) his Due
Process claim against the County, awarding $25, 000 in
compensatory damages. (ECF No. 165.) The jury found that
Officer Weiss was not liable on the excessive force claim.
before the Court is plaintiff's motion for attorneys'
fees and costs. (ECF No. 181.) Plaintiff requests an award of
$89, 281.93 in fees and costs against Officer Cotter and
$883, 726.77 in fees and costs against the County. For the
reasons set forth below, the Court awards plaintiff $7, 500
in attorneys' fees against Officer Cotter ($1.00 of which
is to be satisfied from the jury award) and $338, 979.55 in
attorneys' fees against the County, for a total of $346,
479.55. The Court further awards plaintiff $23, 856.57 in
costs against Officer Cotter and $56, 235.33 in costs against
the County, for a total of $80, 091.90.
Court has set forth the background facts of this case in the
March 27, 2014 Memorandum and Order denying the parties'
cross-motions for summary judgment, see Houston v.
Cotter, 7 F.Supp.3d 283, 287-89 (E.D.N.Y. 2014), and the
March 30, 2016 Memorandum and Order denying defendants'
post-trial motion for judgment as a matter of law,
Houston v. Cotter, No. 07-CV-3256 (JFB) (AYS), 2016
WL 1253391, at *2-10 (E.D.N.Y. Mar. 30, 2016). Accordingly,
the Court does not repeat those facts here and instead
discusses all relevant facts in conjunction with its analysis
of each issue raised by the instant motion.
filed his pro se complaint in this case on July 26,
2007 alleging Section 1983 excessive force claims against
Officers Cotter and Weiss, as well as against Officers
Douglas Gubitosi, Arthur Thomas, and Gerard Reynolds. (ECF
No. 1.) After several years of discovery, Cleary Gottlieb was
designated as counsel to plaintiff in December 2010. (ECF No.
51.) Thereafter, the Court granted plaintiff's motion to
reopen discovery (ECF No. 58), and on December 16, 2011,
plaintiff filed an amended complaint asserting excessive
force claims against Officers Cotter and Weiss and a Due
Process claim against the County (ECF No. 68).
moved to dismiss the complaint on January 20, 2012 (ECF No.
70), and after the Court denied that motion on August 10,
2012 (ECF No. 79), defendants and plaintiff cross-moved for
summary judgment on July 26, 2013 and September 6, 2013,
respectively (ECF Nos. 111, 113). The Court denied the
cross-motions on March 27, 2014 (ECF No. 125), and the case
proceeded to eight days of trial from February 23, 2015
through March 9, 2015 (see ECF Nos. 147-63).
March 9, 2015, the jury reached a verdict and found for
plaintiff as to (1) his excessive force claim against Officer
Cotter, awarding $1, 000 in compensatory damages and $4, 000
in punitive damages; and (2) his Due Process claim against
the County, awarding $25, 000 in compensatory damages. (ECF
No. 165.) The jury also concluded that Officer Weiss was not
liable on the excessive force claim. (Id.) On March
15, 2015, defendants moved to set aside the verdict only with
respect to the Due Process claim against the County on the
ground that the jury's determination was against the
weight of evidence. (ECF No. 166.) The Court de ni e d t ha t
m ot i on on March 30, 2016. (ECF No. 177.)
subsequently filed the instant motion for recovery of
attorneys' fees and costs on April 26, 2016. (ECF No.
181.) Defendants submitted their opposition on June 24, 2016
(ECF No. 187), and plaintiff submitted his reply on July 22,
2016 (ECF No. 188). The Court held oral argument on September
6, 2016 and requested supplemental letters from the parties.
(ECF No. 190.) Plaintiff submitted his letter on September
20, 2016 (ECF No. 191), and defendants filed their letter on
October 4, 2016 (ECF No. 192). The Court has fully considered
all of the parties' submissions.
requests an award of attorneys' fees and costs against
Officer Cotter in the amount of $89, 281.93 and
attorneys' fees and costs against the County in the
amount of $883, 726.77. Defendants do not dispute that
plaintiff's calculation of $7, 500 is a reasonable award
of attorneys' fees against Officer Cotter pursuant to the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e. (Defs.' Br., ECF No. 187-1, at 20.)
However, defendants do contest the reasonability of
plaintiff's request for $81, 781.93 in costs with respect
to Officer Cotter and $677, 959.10 in fees and $205, 767.67
in costs with respect to the County. Specifically, defendants
contend that (1) plaintiff achieved limited success in this
action; (2) plaintiff's requested fees with respect to
the County are unreasonable; (3) plaintiff failed to
adequately document his costs with respect to both
defendants; and (4) plaintiff should in no event recover more
than $50, 000 in total fees and costs.
following reasons, the Court awards plaintiff $346, 479.55 in
attorneys' fees and $80, 091.90 in costs.
general rule in our legal system is that each party must pay
its own attorney's fees and expenses.” Perdue
v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010).
However, 42 U.S.C. § 1988(b) (“Section
1988”) provides that:
In any action or proceeding to enforce a provision of
sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this
title, . . . title VI of the Civil Rights Act of 1964 [42
U.S.C.A. § 2000d et seq.], . . . the court, in its
discretion, may allow the prevailing party, other than the
United States, a reasonable attorney's fee as part of the
costs, except that in any action brought against a judicial
officer for an act or omission taken in such officer's
judicial capacity such officer shall not be held liable for
any costs, including attorney's fees, unless such action
was clearly in excess of such officer's jurisdiction.
42 U.S.C. § 1988(b); see also Blum v. Stenson,
465 U.S. 886, 888 (1984) (“[I]n federal civil rights
actions ‘the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs.'” (quoting
42 U.S.C. § 1988)).
to determine reasonable attorneys' fees, a court must
calculate a “lodestar figure, ” which is
determined by multiplying the number of hours reasonably
expended on a case by a reasonable hourly rate. See
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see
also Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.
1997). “Both [the Second Circuit] and the Supreme Court
have held that the lodestar . . . creates a
‘presumptively reasonable fee.'” Millea
v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011)
(citing Arbor Hill Concerned Citizens Neighborhood Assoc.
v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008);
Perdue 559 U.S. at 542). “‘[T]he
lodestar figure includes most, if not all, of the relevant
factors constituting a ‘reasonable' attorney's
fee.'” Perdue, 559 U.S. at 553 (quoting
Pennsylvania v. Del. Valley Citizens' Council for
Clean Air, 478 U.S. 546, 566 (1986)). Thus, the Supreme
Court has recognized that “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.” Id. at 551. “The
burden is on the party seeking attorney's fees to submit
sufficient evidence to support the hours worked and the rates
claimed.” Hugee v. Kimso Apartments, LLC, 852
F.Supp.2d 281, 298 (E.D.N.Y. 2012) (citing Hensley,
461 U.S. at 433).
addition, the Supreme Court has recognized that
“plaintiff's success is a crucial factor in
determining the proper amount of an award of attorney's
fees under 42 U.S.C. § 1988.” Hensley,
461 U.S. at 440; see also Stanczyk v. City of New
York, 752 F.3d 273, 284-85 (2d Cir. 2014) (citing
Hensley, 461 U.S. at 434-35). In Hensley,
the Court held that:
Where the plaintiff has failed to prevail on a claim that is
distinct in all respects from his successful claims, the
hours spent on the unsuccessful claim should be excluded in
considering the amount of a reasonable fee. Where a lawsuit
consists of related claims, a plaintiff who has won
substantial relief should not have his attorney's fee
reduced simply because the district court did not adopt each
contention raised. But where the plaintiff achieved only
limited success, the district court should award only that
amount of fees that is reasonable in relation to the results
461 U.S. at 440; see also Green v. Torres, 361 F.3d
96, 99 (2d Cir. 2004).
Supreme Court further explained that, in cases where a
plaintiff pursues “distinctly different claims for
relief that are based on different facts and legal
theories” (even though brought against the same
defendants), “counsel's work on one claim will be
unrelated to his work on another claim” and thus,
“work on an unsuccessful claim cannot be deemed to have
been expended in pursuit of the ultimate result
achieved.” Hensley, 461 U.S. at 434-35.
However, “[a] plaintiff's lack of success on some
of his claims does not require the court to reduce the
lodestar amount where the successful and the unsuccessful
claims were interrelated and required essentially the same
proof.” Murphy v. Lynn, 118 F.3d 938, 952 (2d
Cir. 1997); see also Kerin v. U.S. Postal Serv., 218
F.3d 185, 194 n.6 (2d Cir. 2000) (“The district court
therefore has the discretion to award fees for the entire
litigation where the claims are inextricably intertwined and
involve a common core of facts or are based on related legal
theories.” (alteration omitted)).
threshold matter, defendants argue that “[t]he total
award of $30, 000 to the plaintiff in this litigation
represents such an insignificant degree of success that only
a minimal amount of fees should be awarded.”
(Defs.' Br. at 7.) Although they acknowledge that
plaintiff was the “prevailing party” in this
Section 1983 action for purposes of Section 1988
(id.), defendants rely on Hensley, 461 U.S.
at 436, to argue that plaintiff only achieved “partial
or limited success, ” and Farrar v. Hobby, 506
U.S. 103, 115 (1992), to contend that “[i]n some
circumstances, even a plaintiff who formally
‘prevails' under § 1988 should receive no
attorney's fees at all.” Farrar held that
“[a]lthough the ‘technical' nature of a
nominal damages award or any other judgment does not affect
the prevailing party inquiry, it does bear on the propriety
of fees awarded under § 1988, ” id. at
114, and in a concurring opinion, Justice O'Conner wrote
that “[w]hen the plaintiff's success is purely
technical or de minimis, no fees can be awarded,
” id. at 117 (O'Conner, J., concurring).
Court disagrees with defendants' characterization of
plaintiff's victory in this case. First, rather than a
nominal sum, the $30, 000 in compensatory and punitive
damages awarded by the jury was substantial and easily
distinguishable from the cases cited by defendants. See
Carroll v. Blinken, 105 F.3d 79, 81-82 (2d Cir. 1997)
(affirming district court's reduction of requested
attorneys' fees because, inter alia,
“[t]here was no damage award”); Pino v.
Locascio, 101 F.3d 235, 238-39 (2d Cir. 1996) (holding
that district court erred in awarding attorneys' fees in
civil rights action where plaintiff only recovered $1 in
nominal damages). In Pino, the Second Circuit
specifically noted that Farrar's inquiry applies
“whe[re] the plaintiff has won only nominal
damages.” 101 F.3d at 238 (emphasis added) (citing
Farrar, 506 U.S. at 103). Thus, Farrar and
its progeny are inapposite here because plaintiff did not
obtain de minimis or technical relief, but instead
an actual and considerable monetary award. Cf.,
e.g., Hines v. City of Albany, 613 F. App'x
52, 54 (2d Cir. 2015) (“We are unpersuaded by
Defendants' attempts to characterize the $10, 000
settlement in this case as meager. Moreover, the success here
was hardly technical.”).
insofar as defendants assert that plaintiff achieved only
“limited or partial success” because the jury did
not find liability as to Officer Weiss (see
Defs.' Br. at 6), that argument fails because
plaintiff's successful excessive force claim against
Officer Cotter and unsuccessful excessive force claim against
Officer Weiss “involve[d] a common core of facts or
[were] based on related legal theories . . . .”
Green, 361 F.3d at 98; see also Kerin, 218
F.3d at 194; Monette v. Cty. of Nassau, No.
11-CV-539 (JFB) (AKT), 2016 WL 4145798, at *9 (E.D.N.Y. Aug.
4, 2016) (holding that although “plaintiff's claims
for disability discrimination and hostile work environment
were rejected by the jury and plaintiff only prevailed on his
First Amendment retaliation claim, ” no reduction in
requested fees was warranted on partial success grounds
because “the issue of plaintiff's transfer was
inextricably intertwined with his retaliation claim”).
Accordingly, because this “lawsuit consist[ed] of
related claims” and plaintiff “won substantial
relief, ” he “should not have his attorney's
fee reduced simply because the [jury] did not adopt each
contention raised.”Hensley, 461 U.S. at 440.
Cf. Barfield v. New York City Health
and Hospitals Corp., 537 F.3d 132, 152 (2d Cir. 2008)
(affirming reduction of requested attorneys' fees because
plaintiff failed to achieve primary aim of certifying class
to the extent that defendants argue that a fee reduction is
warranted because the jury award was substantially less than
what plaintiff sought, the Court disagrees. In determining
the prevailing party's degree of success, a court must
consider “‘the quantity and quality of relief
obtained, ' as compared to what the plaintiff sought to
achieve as evidenced in her complaint . . . .”
Id. (quoting Carroll, 105 F.3d at 81).
Here, however, plaintiff's amended complaint-the
operative pleading in this action-did not seek a specific
sum, but rather requested “[a]n award to Plaintiff of
compensatory damages against all Defendants, jointly and
severally, resulting from Defendants' unlawful conduct,
the precise amount to be supplied to the Court upon a trial
on the merits . . . .” (Am. Compl. at 16.) At trial,
plaintiff's counsel also did not ask for an exact award
from the jury; instead, he said during summations that
“[t]he law requires [plaintiff] to ask for money
damages, but you can give him as little or as much as you
think is necessary . . . .” (Trial Tr. 1267:3-5, ECF
No. 166-8.) Thus, there is no baseline comparison in this
case between the damages plaintiff sought and the damages the
jury actually awarded, and defendants' reliance on
Toussie v. County of Suffolk, No. 01-CV-6716 (JS)
(ARL), 2012 WL 3860760 (E.D.N.Y. Sept. 6, 2012), is therefore
misplaced. In that case, the court declined to award fees
because, inter alia, “[t]he jury awarded
Toussie only $12, 500-a mere third of a percent of what he
submitted to the jury, ” which totaled approximately
$35.8 million. Id. at *4.
defendants argue that the Court should use the parties'
settlement negotiations as a touchstone. They aver that
“[p]laintiff's award of $30, 000 represents a
recovery of a mere 2% of the ‘actual damages' he
was seeking during the pendency of this action and at
trial” (Defs.' Br. at 7), and that “on
September 18, 2012 the plaintiff presented a demand to settle
the claim in the amount of $1.5 million dollars”
(id. at 5; see also Decl. of Brian Mitchell
Ex. C, ECF No. 187-4.). However, defendants offer no
authority for the proposition that a court may consider a
prior settlement offer as a relevant comparator for
determining the prevailing party's degree of success, and
the Second Circuit has held that a “district court
should not rely on informal negotiations and hindsight to
determine whether further litigation was warranted and,
accordingly, whether attorney's fees should be
awarded.” Ortiz v. Regan, 980 F.2d 138, 140
(2d Cir. 1992); see also Siracuse v. Program for the Dev.
of Human Potential, No. 07 CV 2205 CLP, 2012 WL 1624291,
at *20 (E.D.N.Y. Apr. 30, 2012) (holding that
“defendant has failed to provide any support for the
novel argument that plaintiff should be denied fees because,
in defendant's view, plaintiff's counsel acted
unreasonably in failing to accept defendant's settlement
offer, ” and that consideration of settlement
discussions on a motion for attorneys' fees is barred by
Federal Rule of Evidence 408); Rozell v. Ross-Holst,
576 F.Supp.2d 527, 542 (S.D.N.Y. 2008) (“Nor is it
appropriate to reduce the lodestar on the grounds that the
plaintiff might have settled earlier and still obtained a
substantial recovery at that time.”). Accordingly, the
Court will not consider any settlement offer made by
plaintiff in assessing the reasonability of his request for
the Court declines to award plaintiff no fees or impose a fee
reduction based on limited success at trial because (1) the
compensatory and punitive damages were substantial rather
than nominal; (2) plaintiff's unsuccessful excessive
force claim was factually intertwined with his successful
excessive force claim; and (3) plaintiff did not request a
specific monetary award in his amended complaint or at trial.
Reasonable Hourly Rates
Court proceeds to calculate the lodestar for the
attorneys' fees pertaining to plaintiff's Due Process
Claim against the County by determining reasonable hourly rates
and hours expended. Because defendants do not dispute the
hourly rates propounded by plaintiff, the Court will only
brief address that prong of the lodestar analysis.
reasonable hourly rate is the rate a paying client would be
willing to pay.” Arbor Hill, 522 F.3d at 190.
The Second Circuit's “‘forum rule'
generally requires use of ‘the hourly rates employed in
the district in which the reviewing court sits in calculating
the presumptively reasonable fee.'” Bergerson
v. N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric
Ctr., 652 F.3d 277, 290 (2d Cir. 2011) (quoting
Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174
(2d Cir. 2009)). “Fees should not be awarded at higher
out-of-district rates unless ‘a reasonable client would
have selected out-of-district counsel because doing so would
likely . . . produce a substantially better net
result.'” Id. (quoting Simmons,
575 F.3d at 172). In Arbor Hill, the Second Circuit
also instructed district courts to consider the factors set
forth in Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (5th Cir. 1974), abrogated on other grounds
by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 96 (1989).
See 522 F.3d at 190.
The twelve Johnson factors are: (1) the time and
labor required; (2) the novelty and difficulty of the
questions; (3) the level of skill required to perform the
legal service properly; (4) the preclusion of employment by
the attorney due to acceptance of the case; (5) the
attorney's customary hourly rate; (6) whether the fee is
fixed or contingent; (7) the time limitations imposed by the
client or the circumstances; (8) the amount involved in the
case and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the