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Houston v. Cotter

United States District Court, E.D. New York

February 14, 2017

Robert Houston, Plaintiff,
v.
Thomas Cotter, John Weiss, and the County of Suffolk, Defendants.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO United States District Judge.

         Plaintiff 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[1] 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), [2] and 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 punishment.

         This 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. (Id.)

         Presently 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.

         I. Background

         A. Facts

         The 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.

         B. Procedural History

         Plaintiff 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).

         Defendants 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).

         On 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.)

         Plaintiff 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.

         II. Discussion

         Plaintiff 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.[3] 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.

         For the following reasons, the Court awards plaintiff $346, 479.55 in attorneys' fees and $80, 091.90 in costs.

         A. Applicable Law

         “The 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)).

         Generally, 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).

         In 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 obtained.

461 U.S. at 440; see also Green v. Torres, 361 F.3d 96, 99 (2d Cir. 2004).

         The 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)).

         B. Success

         As a 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).

         The 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.[4] 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.”).

         Second, 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.”[5]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 action).

         Finally, 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.

         Nevertheless, 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 attorneys' fees.[6]

         In sum, 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.

         C. Reasonable Hourly Rates

         The Court proceeds to calculate the lodestar for the attorneys' fees pertaining to plaintiff's Due Process Claim against the County[7] 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.

         “The 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 ...

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