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Coley v. The City of New York

United States District Court, E.D. New York

March 28, 2017

DERRICK COLEY and TURAY COLEY, Plaintiffs,
v.
THE CITY OF NEW YORK, POLICE OFFICER OMAR GARIB, Shield #3570, DETECTIVE BRIAN ILUND, Shield #113, DETECTIVE JAMIE ROSADO, Shield #5776, SERGEANT BRANDON BERSCH, Shield #2946, LIEUTENANT KEVEN BREEN, and POLICE OFFICERS JOHN/JANE DOES #1-10, Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          KIYO A. MATSUMOTO, United States District Judge

         Presently before the court is the Report and Recommendation of United States Magistrate Judge Lois Bloom, filed on December 30, 2016. (ECF No. 41, Report and Recommendations re First Motion for Attorneys Fees (“R&R”).) The R&R recommends that plaintiffs Derrick and Tulay Coley's (“plaintiffs”) motion for attorneys' fees should be granted, but that the award should be reduced from the amount requested. (R&R at 1.) Plaintiffs raise the instant objections to the R&R's recommended reduction in the award of attorneys' fees. (ECF No. 42, Appeal of Magistrate Judge Decision, dated 1/2/2017 (“Pl. Obj.”).) Defendants have not objected to the R&R and request that the court adopt the R&R in its entirety. (ECF No.

43, Response to Motion re report and Recommendations (“Def. Resp.”) at 1.) The court has undertaken a comprehensive de novo review of the R&R and the record in light of plaintiffs' written objections pursuant to 28 U.S.C. § 636(b)(1)(C). For the reasons set forth below, the court adopts the R&R in its entirety.

         Background

         Plaintiff Derrick Coley commenced the instant action on September 3, 2015, alleging violation of his constitutional rights as a result of his arrest on April 25, 2015. (ECF No. 1, Complaint dated 9/3/2015.) On February 6, 2016, Mr. Coley filed an amended complaint, adding, inter alia, his mother Turay Coley as a plaintiff, additional officers as defendants, and an additional claim for illegal search of his property. (ECF No. 12, Amended Complaint dated 2/6/2016.) The court presumes familiarity with the underlying facts and procedural history as set forth in greater detail in the R&R. (See R&R at 1-4.)

         On April 25, 2016, plaintiffs accepted defendants' offer of judgment dated April 11, 2016 (the “Offer of Judgment”), pursuant to Rule 68 of the Federal Rules of Civil Procedure (“Rule 68”), for a total of $5, 002 to be allocated in the amounts of $1, 501 to Derrick Coley and $3, 501 to Turay Coley. (See ECF No. 29, Letter re acceptance of Rule 68 Offer of Judgment; ECF No. 30-1, Rule 68 Offer of Judgment; ECF No. 30-2, Letter accepting Rule 68 Offer of Judgment, dated 4/25/2016.) Under the terms of the Offer of Judgment, defendants agreed to pay “reasonable attorneys' fees, expenses, and costs to the date of this offer for the federal claims of plaintiffs Derrick Coley and Turay Coley.” (ECF No. 30-1, Offer of Judgment.)

         On May 23, 2016, plaintiffs filed the instant motion for attorneys' fees, requesting $24, 595.00 in fees based on a total of 58.95 hours of work performed in this matter by Mr. David Zelman, Esq. and his associates Mr. Joshua Tey, Esq. and Mr. Issac Cwibeker, Esq. (See ECF No. 33, First Motion for Attorneys' Fees; ECF No. 33-1, Affirmation in Support of Plaintiffs' Motion for Attorneys' Fees and Costs (“Pl. Aff.”) at 17.) Plaintiffs do not seek costs or other expenses. (Id.) Defendants filed their opposition to plaintiffs' motion for attorneys' fees on June 20, 2016 (See ECF No. 38, Affidavit/Declaration in Opposition re First Motion for Attorney Fees; ECF No. 39, Memorandum in Support re Affidavit in Opposition to Motion (“Def. Opp.”)), and plaintiffs filed a reply on June 21, 2016. (See ECF No. 40, Reply in Support of Plaintiffs' Application for Attorneys' Fees.)

         On October 7, 2016, the court referred the instant motion to Magistrate Judge Lois Bloom for an R&R. (See Order Referring Motion, dated 10/7/2016.) On December 30, 2016, Judge Bloom issued an R&R recommending that the court grant plaintiffs' motion for attorneys' fees but reduce the award to $10, 318.73 for a total of 37.395 hours of work performed on this matter. (R&R at 13.) The R&R notified the parties that any objections to the R&R must be filed within fourteen days of service of the R&R. (Id. at 14.) On January 2, 2017, plaintiffs timely filed objections to the R&R, asserting objections to the reduced award of attorneys' fees, and requesting that this court award the amount originally requested. (ECF No. 42, Pl. Obj.) Defendants responded to plaintiffs' objections on January 17, 2017, requesting that the court affirm the R&R in its entirety. (Def. Resp. at 1.)

         Discussion

         As discussed below, upon review of the R&R and the instant objections and responses, as well as a comprehensive de novo review of the applicable law and the underlying record, including the court docket, the amended complaint, the application for attorneys' fees, and the related declarations and exhibits, the court adopts the R&R in its entirety.

         I. Standards of Review

         A district court reviews those portions of a Report and Recommendation to which a party has timely objected under a de novo standard of review and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Where “no or merely perfunctory objections” to the Report and Recommendation have been filed, however, the district court reviews for clear error. Caires v. Jp Morgan Chase Bank N.A., No. 16-cv-2694, 2017 WL 384696, at *1 (S.D.N.Y. January 27, 2017). The district court is permitted “to adopt those sections of a magistrate judge's report to which no specific objection is made, so long as those sections are not facially erroneous.” S.E.C. v. Nadel, No. 11-cv-215, 2016 WL 4718188, at *2 (E.D.N.Y. September 9, 2016) (citations omitted). In light of the objections asserted by plaintiffs, the court reviews the R&R de novo.

         II. Plaintiffs' Objections

         Plaintiffs request that the court award the requested attorneys' fees in the amount of $24, 595 for a total of 58.95 hours worked, plus additional fees for the time spent working on plaintiffs' reply to defendants' opposition to the fee ...


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