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Restivo v. Nassau County

United States District Court, E.D. New York

August 28, 2017


          For Plaintiffs: Barry C. Scheck, Esq., Monica R. Shah, Esq., Nick Joel Brustin, Esq., Anna B. Hoffmann, Esq., Peter Jon Neufeld, Esq., Richard W. Sawyer, Esq., Neufeld Scheck & Brustin LLP, Joshua Evan Dubin, Esq., Joshua E. Dubin, Esq., P.A., David Graff, Esq., Rachael Ann Kierych, Esq., Anderson Kill P.C., Leon Friedman, Esq.

          For Defendants: Nassau County Daniel A. Bartoldus, Esq., Amy E. Bedell, Esq., Annemarie Susan Jones, Esq., Lewis Johs Avallone Aviles & Kaufman, LLP, Liora M. Ben-Sorek, Esq., Dennis J. Saffran, Esq., Sondra Meryl Toscano, Esq., Office of the Nassau County Attorney

          Carolann Hessemann, as executrix of the Estate of Joseph Volpe, Peter J. Tomao, Esq., Richard M. Langone, Esq., Law Office of Peter J. Tomao, Thomas J. McNamara, Esq., Certilman, Balin, Adler & Hyman, LLP


          Joanna Seybert, U.S.D.J.

         Currently pending before the Court is Neufeld Scheck & Brustin LLP's (“NSB”) supplemental motion for attorneys' fees (Docket Entry 300). For the reasons that follow, the motion is GRANTED IN PART and DENIED IN PART. NSB is awarded $594, 130.79 in fees and costs for its post-judgment work on this matter.


         The Court assumes familiarity with the facts and procedural history of this case, particularly its November 30, 2015 Order awarding NSB $4, 997, 914.55 in attorneys' fees and costs. See Restivo v. Nassau Cty., No. 06-CV-6720, 2015 WL 7734100 (E.D.N.Y. Nov. 30, 2015). That award encompassed NSB's work from the filing of the case in 2006 to the entry of judgment in 2014. Restivo, 2015 WL 7734100, at *1-2. NSB now seeks an additional award of fees and costs for its work since 2014 on the Second Circuit appeal and various post-judgment proceedings. (Supp. Fee Motion, Docket Entry 300, at 1.) In light of this matter's long history, the Court summarizes only the facts relevant to the instant motion.

         I. Pre-Trial Proceedings and Trial

         Plaintiffs John Restivo and Dennis Halstead (“Plaintiffs”) brought this Section 1983 suit seeking to prove that Nassau County Police Detective Joseph Volpe (“Volpe”) caused their wrongful convictions for the death of Theresa Fusco.[1]Discovery included thirty-five depositions, spanning over fifty-four deposition days, and twenty-three separate discovery requests. (Hoffmann 2014 Decl., Docket Entry 234, ¶ 7.) The case was tried twice. The first trial lasted thirty-one trial days over eleven weeks and included the presentation of forty-two witnesses. The second trial spanned seventeen trial days over five weeks and included the presentation of forty witnesses. (Hoffmann 2014 Decl. ¶ 8.) Both trials were technically complex, involving extensive expert testimony about DNA evidence and forensic hair comparison. (Hoffmann 2014 Decl. ¶ 9.) Plaintiffs offered nine separate expert witnesses and Defendants offered four. (Hoffmann 2014 Decl. ¶ 9.) There was litigation over the admissibility of the opinion testimony of eight of these experts, and the parties conducted a five-day Daubert hearing at which Plaintiffs largely prevailed. (Hoffmann 2014 Decl. ¶ 9.) Throughout most of discovery and the first trial, Plaintiffs' case was joined with that of a third man, John Kogut, who also claimed he was wrongfully convicted of the Theresa Fusco murder. (Hoffmann 2014 Decl. ¶ 10.) This joinder substantially complicated the legal and factual issues in the case, given that Kogut had confessed to the crime, while Plaintiffs had not. (Hoffmann 2014 Decl. ¶ 10.)

         At the conclusion of the second trial, the jury found Volpe liable for unconstitutionally depriving Plaintiffs of their right to a fair trial and for malicious prosecution. (See Verdict Sheet, Docket Entry 198.) The jury awarded Plaintiffs $18 million each in damages, which amounts to $1 million for each year Plaintiffs were imprisoned. Between 2006 and 2014, the parties endured several rounds of substantial legal briefing, including a motion for judgment on the pleadings, a motion for reconsideration, a motion for summary judgment, post-trial briefing after the first trial, another motion for reconsideration, and post-trial briefing after the second trial. (Hoffmann 2014 Decl. ¶ 11.)

         II. The Appeal

         Because Volpe died while the case was pending, judgment was entered against Carolann Hessemann as executrix for the estate of Volpe (“Defendant” or “the Estate”) on November 14, 2014 (the “Judgment”). (See Stip. and Order, Docket Entry 122; J., Docket Entry 228.) Subsequently, the Estate timely filed a notice of appeal. (See Notice of Appeal, Docket Entry 232.) Plaintiffs also filed a notice of cross appeal related to the dismissal of certain claims against Nassau County; however, the cross-appeal was later voluntarily withdrawn. (See Notice of Cross Appeal, Docket Entry 237; Mandate, Docket Entry 281.)

         The Estate's appeal included two rounds of briefing and related motion practice. During the initial round of briefing, the Estate requested permission to file a brief approximately twice the length permitted under the Second Circuit's rules and ultimately raised eight issues on appeal. (Hoffmann 2017 Decl., Docket Entry 300-1, ¶ 8.) After this Court issued its November 30, 2015 Order awarding attorneys' fees, the Estate filed an Amended Notice of Appeal, and the Second Circuit allowed supplemental briefing on the reasonableness of the fee award. (See Amended Notice of Appeal, Docket Entry 286; Restivo v. Nassau Cty., No. 14-4662, 2d Circuit Docket Entry 177.) During the appeal, the parties engaged in additional motion practice, including a motion to strike, a motion for sanctions and a motion to dismiss. (See Restivo v. Nassau Cty., No. 14-4662, 2d Cir. Docket Entries 73, 133, 210.) On January 19, 2017, the Second Circuit issued an 112-page opinion affirming the Judgment in all respects. See Restivo v. Hessemann, 846 F.3d 547 (2d Cir. 2017).

         III. Post-Judgment Proceedings

         In 2015, while litigating the appeal, the parties briefed a series of complex motions and appeared for several hearings in this Court. The Estate sought to stay enforcement of the Judgment pending appeal, and for the first time, suggested that it was unclear whether the County was obligated to indemnify the Estate. (See Estate Mot. to Stay, Docket Entry 243.) At that time, the County and the Estate were represented by the same firm, and because their interests appeared to be adverse to each other, Plaintiffs moved to disqualify counsel from representing both entities. (See Conflict Mot., Docket Entry 244.) Additionally, Plaintiffs filed a petition pursuant to New York C.P.L.R. Section 5227 for a special proceeding and entry of judgment against the County for the full amount of the Judgment against the Estate. (See Pls.' Pet., Docket Entry 253.) Counsel for the Estate and the County subsequently withdrew, and both entities were ordered to retain new counsel. (See Mar. 17, 2015 Minute Order, Docket Entry 259.)

         After another round of briefing regarding the County's obligation to indemnify, the parties negotiated a Stipulation and Consent Decree. It provided that the County would indemnify the Estate and that enforcement of the Judgment would be stayed while the appeal was pending. (Stip. and Consent Decree, Docket Entry 278, § II, ¶¶ 4-5.) Additionally, the County agreed to prepare “a draft ordinance seeking authority to bond forty five million dollars ($45, 000, 000.00) to cover its indemnification obligations . . . [and] present the draft ordinance to the Nassau County Legislature for consideration at the next regularly scheduled meeting of the Legislature following the execution of this stipulation.” (Stip. and Consent Decree, § II, ¶ 6.) The Court so-ordered the Stipulation and Consent Decree on July 1, 2015.

         After discovering that the County had failed to draft and present the bond ordinance to the Nassau County Legislature until July 11, 2016, Plaintiffs filed a motion to hold the County in contempt and lift the stay of enforcement of the Judgment on July 20, 2016. (See Contempt Mot., Docket Entry 295.) At a hearing on February 23, 2017, the Court granted that motion in part and ordered the County to obtain a bond or otherwise demonstrate why a stay of enforcement was warranted given its non-compliance with the Stipulation and Consent Decree. (See Feb. 23, 2017 Minute Order, Docket Entry 304.) Thereafter, the County Treasurer deposited $45 million in a special account designated to satisfy the Judgment should the appeal fail, and the parties negotiated an Order renewing the stay, which the Court so-ordered on March 29, 2017. (See Letter Mot. to Stay, Docket Entry 310; Order Renewing Stay, Docket Entry 315.) Pursuant to that Order, the County agreed to “pay the Judgment in full within thirty (30) days after it becomes final, ” and to seek court approval before removing any funds from the account. (See Order Renewing Stay.)

         IV. NSB's Supplemental Fee Request

         As discussed, the Court previously awarded NSB $4, 997, 914.55 in attorneys' fees and costs. See Restivo, 2015 WL 7734100, at *5. For the work on the appeal and various post-judgment proceedings, NSB requests an additional $615, 804.13 in attorneys' fees and $21, 410.01 in costs. (Supp. Fee Motion at 3-4.) During this period, fourteen different lawyers from NSB and outside counsel Anderson Kill P.C. and two paralegals worked on the matter. (Hoffmann 2017 Decl. ¶ 5.)


         I. Attorneys' Fees in Section 1983 Cases

         Section 1988(b) empowers the Court to award reasonable attorney fees to the prevailing party in a section 1983 action. See 42 U.S.C. § 1988. After the court finds that a party has prevailed, it must determine a reasonable fee to award to the prevailing party's attorneys. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). The lodestar approach is generally used to calculate reasonable attorney fees. “Under this approach, the number of hours reasonably expended on the litigation is multiplied by a reasonable hourly rate for attorneys and paraprofessionals.” Id.; DiFilippo v. Morizio, 759 F.2d 231, 234 (2d Cir. 1985) (“where . . . the party achieves success on the merits, an award of all reasonable hours at a reasonable hourly rate, i.e., the lodestar figure, is presumptively appropriate”). Thus, the Court must arrive at a reasonable hourly rate for the attorneys who worked on the case and “examine the hours expended by counsel and the value of the work product of the particular expenditures to the client's case.” Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998) (quoting DiFilippo v. Morizio, 759 F.2d 231, 235-36 (2d Cir. 1985)).

         II. Reasonab ...

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