DORA L. IRIZARRY, District Judge:
This Order is written for the benefit of the parties regarding the issue of the award of attorneys' fees and costs.
On November 5, 2013, the Court entered judgment in favor of various plaintiff-intervenors on their claims related to the congressional redistricting following the 2010 census. (See Judgment Order, Dkt. Entry No. 639.) Subsequently, the Rose, Drayton, Lee, and Ramos Intervenors filed applications for attorneys' fees, contending that, as prevailing parties, they were entitled to such fees. (See Rose Intervenors' Motion for Attorney Fees, Dkt. Entry No. 647; Drayton Intervenors' Motion for Attorney Fees, Dkt. Entry Nos. 650, 658; Ramos Intervenors' Notice of Motion for Attorney Fees and Costs, Dkt. Entry No. 657; Lee Intervenors' Motion for Attorney Fees, Dkt. Entry No. 659.) The Governor and Lieutenant Governor of the State of New York (collectively, the "State") filed the sole opposition to the fee applications. (See State's Opposition, Dkt. Entry No. 666.)
The Court referred the fee applications to United States Magistrate Judge Roanne L. Mann, who issued a report and recommendation (the "R & R") on May 20, 2014. (See R & R, Dkt. Entry No. 672.) The magistrate judge recommended that: (1) the Rose Intervenors' motion be denied in its entirety; (2) the Lee Intervenors be awarded $61,444 in attorneys' fees; (3) the Drayton Intervenors be awarded $88,502.75 in attorneys' fees, $15,780 in expert fees, and $0.75 in litigation expenses; and (4) the Ramos Intervenors be awarded $97,196.25 in attorneys' fees. (Id. at 1.) The State filed the sole objection to the R & R (see State's Objections to R & R, Dkt. Entry No. 682), which was timely. The Drayton Intervenors filed the sole reply. (See Drayton Intervenors' Repl. Mem. of Law, Dkt. Entry No. 683.) For the reasons set forth below, the R & R is adopted in its entirety.
When a party objects to a R & R, a district judge must make a de novo determination with respect to those portions of the R & R to which the party objects. See Fed.R.Civ.P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). If, however, a party makes conclusory or general objections, or attempts to relitigate the party's original arguments, the court will review the R & R for clear error. Robinson v. Superintendent, Green Haven Correctional Facility, 2012 WL 123263, at *1 (E.D.N.Y. Jan. 17, 2012) (quoting Walker v. Vaughan, 216 F.Supp.2d 290, 292 (S.D.N.Y.2002)). The district court may then "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate
The State contends that the magistrate judge erred in recommending that the Court find that the plaintiff-intervenors achieved prevailing party status. (See State's Objections at 4-10.) The State's objections constitute nothing more than relitigation of its position in its opposition to the fee applications. (Compare State's Objections at 4-10, with State's Opposition at 4-7.) Notably, the magistrate judge anticipated the State's objections, and squarely and correctly addressed each of them in the R & R. (See R & R at 286-90.)
Nonetheless, the Court has carefully considered the State's objections to the R & R, which are meritless. First, the magistrate judge articulated and applied the correct legal standard for determining whether the plaintiff-intervenors achieved prevailing party status. In this action, the plaintiff-intervenors sought attorneys' fees and costs under 42 U.S.C. § 1988 and 1973l(e), which state that "the court, in its discretion, may allow the prevailing party... a reasonable attorney's fee" and costs.
The Supreme Court has explained that, it is unnecessary for a party to prevail on every issue in a litigation to achieve prevailing party status. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (explaining that "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit"). If prevailing party status is achieved, the Court must then evaluate the "reasonableness" of the application. Id. The Court further clarified that, "at a minimum, to be considered a prevailing party within the meaning of § 1988, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Texas State Teachers Assoc. v. Garland Indep. Sch. Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). Some "purely technical or de minimis" victories may fail to support prevailing party status; however, a party crosses the threshold to prevailing party status when the party "succeed[s] on any significant issue in litigation which achieved[d] some of the benefit the parties sought in bringing the suit." Id. at 791-92, 109 S.Ct. 1486 (internal quotation marks omitted) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). Thus, "[t]he touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." Id. at 792-93, 109 S.Ct. 1486. "Where such a change has occurred, the degree of the plaintiff's overall success goes to the reasonableness of the award under Hensley, not to the availability of a fee award vel non." Id. at 793, 109 S.Ct. 1486.
In this action, the magistrate judge properly evaluated the fee and cost applications under the well settled Garland framework. (See R & R at 286-90.) The magistrate judge properly declined the State's request to apply the slightly different analysis set forth in Hastert v. Illinois State. Bd. of Election Commis., 28 F.3d 1430 (7th Cir.1993), a redistricting case. In that case, the Seventh Circuit announced a special standard for fee applications
Second, although the State did not object to the magistrate judge's calculation of the fees and costs for each of the plaintiff-intervenors, it bears noting that the magistrate judge applied the appropriate legal standards and reached the correct resolution with respect to each party's application. The magistrate judge was in the best position to determine the merits of the applications as she served as the Special Master in this action, reviewing the parties' submissions with respect to the congressional redistricting and crafting the new congressional map, which was adopted by the three judge panel. She was keenly aware of each of the plaintiff-intervenors' contributions to the final map adopted by the Court, their overall success in achieving their goals in this litigation, and whether their efforts were merely duplicative of the original plaintiffs' efforts. She skillfully adjusted their requested compensation to reflect their contribution to the litigation. Accordingly, upon review of the characteristically thorough, thoughtful, and well-reasoned R & R, the Court hereby adopts the R & R in its entirety.
For the reasons set forth above, the R & R is adopted in its entirety. Accordingly, it is ORDERED that: (1) the Rose Intervenors' motion is denied in its entirety; (2) the Lee Intervenors are awarded $61,444 in attorneys' fees; (3) the Drayton Intervenors are awarded $88,502.75 in attorneys' fees, $15,780 in expert fees, and $0.75 in litigation expenses; and (4) the Ramos Intervenors are awarded $97,196.25 in attorneys' fees.
SO ORDERED.
ROANNE L. MANN, United States Magistrate Judge:
More than two years ago, the Three-Judge Panel (the "Panel") assigned to this case, assisted by the undersigned magistrate judge, undertook the "unwelcome obligation" of redrawing the State of New York's electoral districts for the United States Congress. Perry v. Perez, ___ U.S. ___, 132 S.Ct. 934, 940, 181 L.Ed.2d 900 (2012) (quoting Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977)). Although the parties to the instant lawsuit continue to litigate the redistricting of the maps for the New York State legislature, the Panel has entered judgment on claims related to the congressional districts. Now, four groups of plaintiff-intervenors, referred to herein as the Rose, Lee, Drayton, and Ramos Intervenors, move for awards of attorney's fees and costs. These motions are before this Court on a referral from the Panel. For the reasons set forth below, this Court respectfully recommends (1) that the Rose Intervenors' motion be denied in its entirety; (2) that the Lee Intervenors be awarded $61,444 in attorney's fees; (3) that the Drayton Intervenors be awarded $88,502.75 in attorney's fees, $15,780 in expert fees, and $0.75 in litigation expenses; and (4) that the Ramos Intervenors be awarded $97,196.25 in attorney's fees.
This Court recounts only the background necessary to resolve the pending motions for attorney's fees and costs.
This litigation arose out of the failure of New York's legislature to timely enact a new congressional redistricting plan in response to the 2010 Census. Plaintiffs Mark A. Favors, Howard Leib, Lillie H. Galan, Edward A. Mulraine, Warren Schreiber, and Weyman A. Carey (collectively, the "Primary Plaintiffs") commenced this action on November 17, 2011, seeking, inter alia, a judgment declaring the then-existing congressional districts invalid and appointing a Special Master to draw new congressional districts in compliance with the law. See Favors Complaint (Nov. 17, 2011) at 32-33, ECF Docket Entry ("DE") # 1. Over the next few months, four more sets of individuals intervened in the litigation as plaintiffs: Donna Kaye Drayton, Edwin Ellis, Aida Forrest, Gene A. Johnson, Joy Woolley, and Shelia Wright (the "Drayton Intervenors"); (2) Juan Ramos, Nick Chavarria, Graciela Heymann, Sandra Martinez, Edwin Roldan, and Manolin Tirado (the "Ramos Intervenors"); (3) Linda Lee, Shing Chor Chung, Jung Ho Hong, and Julia Yang (the "Lee Intervenors"); and (4) Linda Rose, Everet Mills, Anthony Hoffman, Kim Thompson-Werekoh, Carlotta Bishop, Carol Rinzler, George Stamatiades, Josephine Rodriguez, and Scott Auster (the "Rose Intervenors"). See Order Granting Motions to Intervene (Feb. 14, 2012); Order Granting Motion to Intervene (Feb. 21, 2012).
The four intervenor groups (the "Intervenors") submitted their proposed redistricting plans, along with supporting arguments and data, by February 29, 2012. The Rose Intervenors submitted a statewide redistricting plan. See Rose Intervenors' Maps (Feb. 29, 2012), DE # 141-1. The Ramos, Drayton, and Lee Intervenors submitted modified versions of the socalled "Unity Plan" or "Unity Map," described as "the joint effort of four voting rights advocacy organizations for the protected population groups in New York City." Drayton Intervenors' Memorandum in Support of Congressional Unity Map (Feb. 29, 2012) at 4, DE # 139. Unlike the Rose Intervenors' proposed plan, these maps covered only the New York City area. See, e.g., Lee Intervenors' Proposed Congressional Plan (Feb. 29, 2012), DE # 138-6. Several groups of defendants also submitted plans, but the Primary Plaintiffs did not.
In accordance with a schedule set by this Court, see Minute Entry (Feb. 27, 2012), DE # 129, the parties filed responses and objections to the various plans submitted to the Court. The parties also advocated for their respective proposed plans and against competing proposals at a four-hour hearing before this Court on March 5, 2012. See Minute Entry (Mar. 5, 2012), DE # 183.
That same day, the undersigned magistrate judge unveiled a draft congressional redistricting plan (the "Proposed Plan"), and directed the parties to show cause why the Proposed Plan should not be presented to the Panel as this Court's recommendation. See Order to Show Cause (Mar. 5, 2012) ("3/5/12 OTSC"), DE # 184. After receiving responses from the Intervenors and other parties, this Court recommended a slightly modified version of the Proposed Plan (the "Recommended Plan") to the Panel. See Report and Recommendation (Mar. 12, 2012) ("3/12/12 R & R"), DE # 223; Changes Made From Proposed Plan to Recommended Plan (Mar. 12, 2012), DE # 223-9. Neither the Proposed Plan nor Recommended Plan adopted district lines advocated by any of the parties.
In the week following the filing of the Recommended Plan, the parties responded to that plan through written submissions and argument at a hearing before the Panel on March 15, 2012. See Minute Entry (Mar. 15, 2012), DE # 238. Four days later, the Panel issued an order adopting the Recommended Plan with a few minor modifications (the "Adopted Plan"). See Order Adopting Report and Recommendations (Mar. 19, 2012) ("3/19/12 Order"), DE # 242. In its 3/19/12 Order, the Panel declared New York's then-existing congressional districts unconstitutional and ordered the defendants to implement the Adopted Plan. See id. at 43-44. The following year, on November 5, 2013, the Panel entered final judgment on claims related to congressional redistricting. See Judgment Order (Nov. 5, 2013) at 2, DE # 639.
Fourteen days after the Panel entered the aforesaid judgment, the Rose and
The Panel referred the Intervenors' various fee applications to the undersigned magistrate judge for issuance of a report and recommendation. See Order Referring Motion (Dec. 3, 2013); Order Referring Motion (Dec. 16, 2013); Order Referring Motion (Dee. 20, 2013). This Court has considered the parties' submissions and provides its recommendations herein.
In an action brought under 42 U.S.C. § 1983, "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs ...." 42 U.S.C. § 1988(b). Similarly, a court may award reasonable attorney's fees, expert fees, and litigation expenses "[i]n any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment...." Id. § 19731(e). "Since § 19731(e) and § 1988 contain nearly identical language and are driven by similar Congressional intent, the Courts construe these fee shifting statutes similarly." Davis v. City of New Rochelle, 156 F.R.D. 549, 553 (S.D.N.Y.1994) (footnote omitted) (citing, inter alio, Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Hastert v. Illinois State Bd. of Election Comm'rs, 28 F.3d 1430, 1439 n. 10 (7th Cir.1993)). The purpose of such fee-shifting provisions is to ensure "`effective access to the judicial process' for persons with civil rights grievances. Accordingly, a prevailing plaintiff `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" Hensley, 461 U.S. at 429, 103 S.Ct. 1933 (citations omitted); see Wilder v. Bernstein, 965 F.2d 1196, 1201-02 (2d Cir.1992); Hastert, 28 F.3d at 1439. Here, the Intervenors assert that they are prevailing parties, but the State disputes this characterization. Hence, the Court addresses whether Intervenors prevailed before determining what amount of fees, if any, each group should recover.
"[A] plaintiff prevails when actual relief on the merits of a claim materially alters the legal relationship between the parties by modifying the defendants' behavior in a way that directly benefits the plaintiff[.]" Abrahamson v. Bd. of Educ. of Wappingers Falls Cent. Sch. Dist., 374 F.3d 66, 78 (2d Cir.2004) (citing Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566,
This Court concludes that in the circumstances presented here, the Intervenors are prevailing parties. At a minimum, the Intervenors succeeded on a "significant issue in litigation which achieve[d] some of the benefit" they sought in entering the case. Garland, 489 U.S. at 791-92, 109 S.Ct. 1486. The Intervenors' complaints alleged that New York's existing congressional districts were malapportioned in light of the 2010 Census and sought a judicially ordered congressional redistricting plan. See Drayton Complaint (Dec. 19, 2011), DE # 28-4; Ramos Complaint (Dec. 27, 2011), DE # 37; Lee Complaint (Dec. 28, 2011), DE # 38-5; Rose Complaint (Feb. 15, 2012), DE # 81-2. In this respect, the Intervenors obtained the relief sought in their complaints: The Panel declared New York's existing congressional districts unconstitutional and ordered the defendants to implement a judicially created redistricting plan. See 3/19/12 Order at 43-44.
The State's arguments against prevailing-party status are unavailing. According to the State, the Second Circuit's decision in Wilder, 965 F.2d at 1202-05, imposes two additional hurdles that an intervenor must overcome in order to prevail for feeshifting purposes: i.e., an intervenor must (1) receive a direct benefit from the judgment; and (2) do more than "merely duplicate the efforts of the primary plaintiffs."
A fatal flaw in the State's argument is that Wilder does not, as the State contends, create a different test for determining whether plaintiff-intervenors prevail in suits involving their own constitutional rights. In fact, Wilder says little about the Intervenors' prevailing-party status in this case aside from affirming, generally, that an intervenor may be a prevailing party for fee-shifting purposes, see 965 F.2d at 1201-02.
To be sure, this Court's approach to determining prevailing-party status departs from the Seventh Circuit's analysis in Hastert, 28 F.3d at 1439-43, which the State urges this Court to follow, see First Opp. at 3-4; Second Opp. at 5. In Hastert, the original plaintiffs (the "Hastert group") filed suit in anticipation of a legislative deadlock on congressional reapportionment in Illinois. See 28 F.3d at 1435. The Hastert group sought a declaration that the existing congressional districts were unconstitutional, as well as an injunction preventing the use of existing districts in the 1992 elections. Id. Eventually, the case grew to include a total of six plaintiff groups, each with its own redistricting
In reviewing five of the plaintiff groups' fee applications on appeal, the Seventh Circuit noted that "the principal issue in litigation ... involved the determination of which proposed [congressional redistricting] plan for the entire State of Illinois best met constitutional and statutory criteria." Id. at 1440 (internal quotation marks omitted) (alteration in original). The Seventh Circuit endorsed a "lay person's perspective," according to which the "winner... is the litigant whose plan and objectives (usually incorporated in its map) the district court adopted." Id. at 1439. Under this approach, four groups of voters whose objectives had been achieved were held to be prevailing parties, see id. at 1440142,
Although intuitively appealing, the Seventh Circuit's approach has not been adopted in this Circuit and seems incompatible with the Supreme Court's decisions on prevailing-party status. See generally Perrin, 83 P.3d at 375-76. Simply put, at the first stage of the analysis, the relevant question is not, as the Hastert court asserted, whether a party succeeded on the principal issue in litigation, but whether it succeeded on "any significant issue in litigation which achieve[d] some of the benefit [the party] sought in bringing the suit." Garland, 489 U.S. at 791-92, 109 S.Ct. 1486; see also id. at 790, 109 S.Ct. 1486 ("[T]he degree of the plaintiff's success in relation to the other goals of the lawsuit is a factor critical to the determination of the size of a reasonable fee, not to eligibility for a fee award at all."); see Fox v. Vice, ___ U.S. ___, 131 S.Ct. 2205, 2214, 180 L.Ed.2d 45 (2011) ("A court should compensate the plaintiff for the time his attorney reasonably spent in achieving the favorable outcome, even if the plaintiff failed to prevail on every contention.'") (quoting Hensley, 461 U.S. at 435, 103 S.Ct. 1933). "[S]uccess on the threshold question of unconstitutional malapportionment suffices to confer `prevailing party' status, regardless of the ultimate remedy." Perrin, 83 P.3d at 375-76 & n. 10 (collecting cases).
A party "who has `prevail[ed]' in the litigation has established only his eligibility for, not his entitlement to, an award of fees." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir.1998) (citing Farrar, 506 U.S. at 114, 113 S.Ct. 566; Hensley, 461 U.S. at 433, 103 S.Ct. 1933). "The district court retains discretion to determine, under all the circumstances, what constitutes a `reasonable' fee, and in appropriate circumstances the court may conclude that, even though a plaintiff has formally prevailed, no award of fees to that plaintiff would be reasonable." Id. (citations omitted). In exercising its discretion, the Court must "provide a reasonably specific explanation for all aspects of a fee determination ...." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 558, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433, 103 S.Ct. 1933. Nevertheless, the "most critical factor" in determining a reasonable fee award is the degree of success obtained. Id. at 436, 103 S.Ct. 1933. A reasonable fee award should be "just high enough to attract competent counsel." Simmons v. New York City Transit Auth., 575 F.3d 170, 174-75 (2d Cir.2009).
An applicant for attorney's fees "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended...." Hensley, 461 U.S. at 437, 103 S.Ct. 1933. The applicant's documentation must include "contemporaneous time records ... [that] specify, for each attorney, the date, the hours expended, and the nature of the work done." New York Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983). Furthermore, "[i]f the documentation is inadequate, the court may reduce the award accordingly." Struthers v. City of New York, No. 12-CV-242, 2013 WL 5407221, at *8 (E.D.N.Y. Sept. 25, 2013) (citing Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933).
"In determining the hours reasonably expended, the court must `examine the hours expended by counsel and the value of the work product of the particular expenditures to the client's case.'" Id. (quoting Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.1998)). "In addition, the court should exclude `excessive, redundant, or otherwise unnecessary' hours from the lodestar calculation." Id. (quoting Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir.2009)). "In making this examination, the district court does not play the role of an uninformed arbiter but may look to its familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties." Gierlinger, 160 F.3d at 876 (quoting DiFilippo v. Morizio, 759 F.2d 231, 235-36 (2d
As noted above, the "results obtained" constitute the most important consideration in determining what hours were reasonably expended. See generally Hensley, 461 U.S. at 434, 103 S.Ct. 1933.
When the parties requesting fees are intervenors, courts must also consider the extent to which the intervenors' "participation contributed importantly to the creation of remedies." Wilder, 965 F.2d at 1204 (internal quotation marks omitted) (quoting Waterbury, 605 F.2d at 576). Efforts that merely duplicate those of the primary plaintiffs should not count toward a fee award. See id. at 1204-05. However, "when nonduplicative efforts by intervenors effectuate the civil rights at issue they are entitled to an award because such a result furthers the purpose of the civil rights statutes in a fashion envisioned by Congress." Id. at 1205.
The State advances several arguments for across-the-board cuts to the hours of all the Intervenors.
In order to assess the strength of the State's arguments, the Court must consider the circumstances of each individual intervenor group; contray to the State's assumption, the Intervenors enjoyed varying degrees of success with respect to the Adopted Map. It is true, as the State suggests, that the proper measure of the Intervenors' success is the extent to which the Adopted Map met the Intervenors' objectives, and the similarity between the parties' proposed maps and the Adopted Map is clearly relevant on this issue. However, an intervenor may recover fees for its contributions to a remedy even if the ultimately adopted remedy is not the precise one it had proposed. See, e.g., Waterbury, 605 F.2d at 576-77. Hence, the fact that the Panel did not adopt the Intervenors' proffered maps does not end the Court's inquiry into their respective contributions and degrees of success, which will be considered below on a group-by-group basis. See infra pp. 293-300.
In further support of across-the-board cuts, the State also complains that the Intervenors did not collaborate sufficiently. According to the State, the Intervenors are "parties with common interests," and should not have "filed separate motions to intervene, separate motions in support of their respective proposed Congressional maps, and separate fee applications." Second Opp. at 9. Id. The Court remains unpersuaded. Each of the Intervenor groups represented different interests and had different concerns regarding the congressional districts. "While all the intervenors were interested in ensuring their votes were not diluted, they put forward plans focused on different areas and supported by different arguments." Reply Memorandum in Support of Lee Intervenors' Motion (Feb. 14, 2014) ("Lee Reply") at 7, DE # 670; see Memorandum of Law in Reply to State Defendants' Opposition (Feb. 14, 2014) ("Drayton Reply") at 7, DE # 668; Reply in Support of the Rose Intervenors' Motion (Feb. 14, 2014) ("Rose Reply") at 8, DE # 669; Reply Memorandum of Ramos Intervenors (Feb. 14, 2014) ("Ramos Reply") at 6, DE # 671. Additionally, given the extremely compressed timeline involved in this case, it is understandable that counsel were not able to coordinate for maximal efficiency. See
The Rose Intervenors are a group of voters from districts that were overpopulated in light of the 2010 Census, and they sought to intervene to protect their individual voting rights. See Proposed Rose Intervenors' Memorandum of Law in Support of Motion to Intervene as Plaintiffs (Feb. 15, 2012) at 1-4, 13, DE # 81-1. As evidenced by the entire record, the Rose Intervenors' main objective was to propose and persuade the Court to adopt that group's statewide redistricting plan. See Rose Intervenors' Memorandum on Proposed Map (Feb. 29, 2012), DE # 141; Rose Intervenors' Proposed Plan (Feb. 29, 2012), DE # 141-1. Their counsel in this litigation were attorneys with the firm Perkins Coie LLP. See Memorandum in Support of Rose Intervenors' Motion for Attorneys' Fees, Expert Fees, and Costs (Nov. 19, 2013) ("Rose Mem.") at 8, DE # 648. The Rose Intervenors seek compensation for 571.4 hours of work by Perkins Coie. See id. at 5. According to the Rose Intervenors, this number of hours was reasonable "[i]n light of the complexity of this case and the Rose Intervenors' ultimate success ...." Id. at 6.
The State opposes any award of fees to the Rose Intervenors, arguing that they have not identified any significant contributions made by them toward the resolution of this case. See First Opp. at 4. The Rose Intervenors' proposed (and rejected) map, the State argues, did not contribute to the remedy granted by the Court. See id. Relying on an isolated passage in Barfield, 537 F.3d at 152, the Rose Intervenors counter that they are entitled to fees because they achieved everything they sought in their complaint. See Rose Reply at 6-7. However, the outcome in Barfield makes abundantly clear that in measuring a party's level of success, a court is not confined to an examination of the pleadings but may consider the record as a whole to determine whether the fee applicant achieved its litigation objectives.
Taking into account the Rose Intervenors' main objective in seeking to intervene in this case, it cannot be said that their participation — however capable their counsel — contributed significantly to the remedies granted. Although the simple fact that the Court rejected the Rose Intervenors' map is not dispositive, cf. Waterbury, 605 F.2d at 576-77, the Rose Intervenors identify no aspect of the Adopted Map that was influenced by their advocacy or their proposed map. In fact, this Court rejected the Rose Intervenors' challenges to the map that it had initially proposed; specifically, they complained that the Court had failed to take incumbency into account or to better preserve
Nor could the Rose Intervenors be said to have made any meaningful contribution on the issue of liability — that is, to their entitlement to a judicially crafted redistricting plan. While the Rose Intervenors correctly observe that they intervened while the question of liability was technically still open, see Rose Reply at 5, they identify no contributions by them to the resolution of that question.
Instead of identifying achievements, the Rose Intervenors cite their counsel's efforts to "diligently defend[] their clients' interests." Rose Mem. at 7. They argue that they contributed to the outcome of this case through the submission of a statewide redistricting map based on expert testimony "that educated the Court about alternative ways to draw New York's districts," and through their research and explanation of governing legal standards, participation in hearings, and "identaication of] problems with other proposed maps by submitting comments and objections." Id. at 4-5. Diligent though the efforts of Rose Intervenors' counsel may have been, such efforts, without more, do not constitute "important contributions to the outcome of this case." Id. at 4.
The Lee Intervenors are four Asian American registered voters who reside in New York City and "represent the interests of Asian Americans, as well as their own interests as voters." Lee Complaint ¶ 6. In this litigation, the Lee Intervenors primarily "sought to ensure that the redistricting process resulted in congressional districts that keep the Asian American communities of common interest in which they reside whole and together, to ensure that their voting power is not diluted." Lee Reply at 4 (internal quotation marks and brackets omitted). The Lee Intervenors were represented by attorneys with the firm Kaye Scholer and the Asian American Legal Defense and Education Fund ("AALDEF"), and they request reimbursement for a total of 290.01 hours of work by these attorneys.
The Lee Intervenors were substantially successful. Although the Court did not adopt their proposed district lines, the Court "ultimately adopted a map that included districts that maintained the integrity of several Asian-American communities." Id. at 3. Hence, the Adopted Map "reflects the substance of the Lee Intervenors' arguments to protect the integrity of Asian American communities in New York." Id. at 3-4 (citing Declaration of Jerry G. Vattamala (Dec. 20, 2013) ("Vattamala Decl.") ¶¶ 13-14, DE # 665). Specifically, the Lee Intervenors persuasively argue that this Court's redistricting map, adopted by the Panel, meets the Lee Intervenors' objectives in several respects: (1) adopted District 6 retains within a single district the Asian American community in Flushing/Bayside, Elmhurst, and Briarwood/Jamaica Hills, Queens; (2) adopted District 7 retains the community of interest in Manhattan's Chinatown and Brooklyn's Sunset Park; (3) adopted District 14 holds the Asian American community of interest in Jackson Heights and Woodside, Queens, within a single district; and (4) adopted District 5 retains the Asian American community of interest in Richmond Hill/South Ozone Park within a single district. See Memorandum of Law in Support
The State suggests that the Lee Intervenors did not succeed because the adopted districts cited by them as successes do not match their proposed districts, but instead were based on previously existing districts. See Second Opp. at 6 (citing Persily Aff. ¶¶ 76-77, 81, 83, 88). This argument has only partial merit. The fact that the Court did not adopt the Lee Intervenors' proposed lines qualifies their success, but does not completely negate it, because the Court's plan incorporated the substance of the Lee Intervenors' proposal.
Accordingly, this Court believes that only a 20-percent reduction in the Lee Intervenors' requested hours is appropriate on the basis of their degree of success. Cf. Healey v. Leavitt, 485 F.3d 63, 72 (2d Cir.2007) (holding that district court did not abuse its discretion in applying percentage reductions to plaintiffs fee award to reflect limited success in litigation as a whole). This moderate reduction ensures that parties like the Lee Intervenors can find competent counsel in redistricting cases, while incentivizing them to submit plans that meet not only their interests but other necessary characteristics of a court-supervised plan. Cf. Barfield, 537 F.3d at 152 (district court's reduction in fees for plaintiff who succeeded on FLSA claim while failing to achieve primary aim of collective certification was appropriate because awarding the requested amount would decrease attorneys' incentives to vigorously litigate collective action certification and encourage the filing of weak collective-action-based claims).
The Drayton Intervenors are six Black voters residing in New York City who intervened "to protect their rights as Black voters...." Proposed Drayton Intervenors' Memorandum of Law in Support of Motion to Intervene (Dec. 19, 2011) at 1, DE # 28-3. Their primary aim in this litigation was to promote a modified version of the Unity Map to protect Black communities of interest. See Memorandum in Support of Congressional Unity Map (Feb. 29, 2012), DE # 139. The Drayton Intervenors were represented by attorneys with the law firm Newman Ferrara and the Center for Law and Social Justice at Medgar Evers College ("CLSJ"). The Drayton Intervenors seek compensation for a total of 331.05 hours of work by the attorneys and their support staff.
The Drayton Intervenors' efforts, which paralleled those of the other Intervenors, were largely successful. While the Panel did not adopt the Drayton Intervenors' proposed Unity Map, they nonetheless succeeded in preserving Black communities of interest. "[T]he geographical locations and the number of Black majority-minority congressional districts contained in the adopted plan are substantially similar [to] those contained in the Unity Map." Drayton Reply at 3. Notably, the Drayton Intervenors persuaded this Court,
After examining the time records of the Drayton Intervenors' attorneys, the Court finds that the hours claimed were generally reasonable. See Declaration of Randolph M. McLaughlin (Nov. 19, 2013) ("McLaughlin Decl.") ¶ 3, DE # 652; Ex. B to McLaughlin Decl., DE # 652-2; Declaration of Joan P. Gibbs (Dec. 19, 2013) ("First Gibbs Decl.") ¶¶ 8, 15, DE # 658-2; Ex. B to First Gibbs Decl.; Ex. D to First Gibbs Decl. The Court has identified two issues, however. First, the Drayton Intervenors inexplicably request compensation for 91.25 hours for attorney Esmeralda Simmons' work even though her time records account for only 88 hours and 25 minutes. See Ex. D to First Gibbs Decl. Accordingly, this Court uses 88.4 hours as the starting point for Simmons' hours before applying the aforementioned percentage reduction. The second issue is that Newman Ferrara included tasks performed between March 23, 2012 and May 29, 2012, that appear to concern aspects of this case unrelated to congressional redistricting. See Ex. B to McLaughlin Decl. Hence, this Court has subtracted the time associated with these tasks prior to applying the recommended 30-percent reduction. Specifically, this Court has subtracted 20.6 hours from Randolph McLaughlin's time charges, 3.4 hours from Jeffrey Norton's time charges, and 3.0 hours from Courtney Chenette's time charges.
The State raises two additional arguments for reducing the Drayton Intervenors' requested hours. First, the State criticizes the Drayton Intervenors for submitting two separate fee applications, contending that the Court should consider only one such fee motion. See Second Opp. at 10. In response, the Drayton Intervenors explain that they submitted multiple fee applications because, at the time fee applications were originally due, their lead counsel, Joan Gibbs, had been preparing for oral argument in connection with a later stage of this redistricting litigation, and they therefore filed for an extension. See Drayton Reply at 8. Since the extension was not granted until December 3, 2013, the Drayton Intervenors understandably first filed a separate motion to recover fees for Newman Ferrara's
The State's final argument is that a reduction is appropriate because the Drayton Intervenors unnecessarily sent three attorneys to court hearings on March 5 and March 15, 2012. See Second Opp. at 10. However, for reasons explained in its discussion of the Lee Intervenors' requested hours, this Court would not apply a further reduction on this basis. Hence, it is respectfully recommended that the Panel award the Drayton Intervenors attorney's fees for those requested hours related to congressional redistricting, reduced by 30 percent on the basis of qualified success.
The Ramos Intervenors are six Latino voters who intervened to represent the Latino community's interests in redistricting. See Ramos Intervenors' Memorandum in Support of Complaint in Intervention (Dec. 27, 2011) at 6, DE # 37-1; Memorandum of Law in Support of Ramos Plaintiffs' Motion for Attorney's Fees and Costs (Dec. 13, 2013) ("Ramos Mem.") at 7, DE # 657-2. Like the Lee Intervenors and Drayton Intervenors, the Ramos Intervenors promoted a partial redistricting plan based on the Unity Map. See Ramos Reply at 4; Ramos Intervenors' Plan Submissions (Feb. 29, 2012), DE # 142. The Ramos Intervenors were represented in this action by LatinoJustice PRLDEF ("LatinoJustice"), and they seek reimbursement for 343.1 hours of work.
This Court concludes that an award of fees is appropriate because the Ramos Intervenors substantially achieved their litigation objectives. Their proposed plan is not inconsistent with the Panel's Adopted Map, and they "achieved the preservation of two Congressional districts held by preferred Latino minority representatives, in the Bronx and Kings County, and a district in Central Harlem, which was redrawn for the Latino majority residents...." Ramos Mem. at 4. However, one issue on which the Ramos Intervenors did not succeed is the placement of Greenpoint and Williamsburg. In response to this Court's Proposed Map and Recommended Map, they (like the Drayton Intervenors) unsuccessfully argued for placing these neighborhoods in a different district than the one ultimately adopted by the Panel, see Ramos Intervenors' Response to Proposed Map (Mar. 6, 2012), DE # 190; Ramos Intervenors' Response to Recommended Map (Mar. 14, 2012), DE # 228-1; 3/19/12 Order at 27-29. Accordingly, the Court finds that the Ramos Intervenors' level of success is roughly comparable to that of the Drayton Intervenors, and therefore recommends the same 30-percent reduction to the Ramos Intervenors' hours on the basis of qualified success.
The State argues, as it did in connection with the Lee Intervenors, that the relevant adopted districts were based on previously existing districts, rather than on the Ramos Intervenors' map. See Second Opp. at 6. The Court is not convinced that this provides a basis for further reducing the
Upon reviewing the Ramos Intervenors' time records, the Court concludes that the hours and tasks documented are reasonable.
Accordingly, it is respectfully recommended that the Panel award the Ramos Intervenors attorney's fees for their requested hours (except for those attributed to Knotts and Diaz), reduced by 30 percent on the basis of qualified success.
Generally speaking, a reasonable hourly rate "is the rate a paying client would be willing to pay." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d Cir.2007). Hence, courts look to rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation," commonly referred to as "prevailing market rates." Blum v. Stenson, 465 U.S. 886, 895 & n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). A court, in determining the prevailing market rate, must evaluate the evidence proffered by the parties. Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir.2005). Additionally, the court may take judicial notice of rates awarded in prior cases and rely on its own familiarity with prevailing rates in the community. See id. "[T]he burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with" prevailing market rates. Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541. If the fee applicant carries this burden, the requested rates are normally deemed reasonable. See id.
For purposes of determining prevailing market rates, the relevant community is the district in which the court sits. Farbotko, 433 F.3d at 208. According to the "forum rule," courts ordinarily award in-district rates. See Simmons, 575 F.3d at 174 (citing Arbor Hill v. County of Albany, 493 F.3d 110, 119 (2d Cir.2007)). "[W]hen faced with a request for an award of higher out-of-district rates, a district court must first apply a presumption in favor of application of the forum rule." Id. at 175. "[T]o overcome that presumption, a litigant must persuasively establish that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result." Id. This principle applies even where, as here, the forum district is the Eastern District of New York, and a number of the attorneys
In addition to considering prevailing market rates, courts setting reasonable hourly rates must "bear in mind all of the case-specific variables" that the Second Circuit and other courts have identified as relevant to the reasonableness of attorney's fees. Arbor Hill, 522 F.3d at 190 (emphasis omitted); see also NYC Firefighters, 2013 WL 5542459, at *6.
"Recent opinions in this district suggest that reasonable hourly rates are `approximately $400-$450 for partners, $200-$325 for senior associates, and $100-$200 for junior associates.'"
Redistricting litigation "is not like ordinary civil rights litigation." Davis v. Perry, 991 F.Supp.2d 809, 844 (W.D.Tex.2014) (three judge panel) (citing Balderas v. Texas, 6:01-CV-158, 2002 WL 32113830, at *3 (E.D.Tex. Feb. 20, 2002)). One unique aspect of redistricting litigation is that it generally arises on a decennial basis. For that reason, "it would appear that any attorney would need to practice for at least a decade before he or she could appear in an apportionment litigation cycle with significant experience." Desena v. Lepage, 847 F.Supp.2d 207, 216 (D.Me.2012) (three judge panel). When experienced attorneys are involved, courts have awarded fees at relatively high rates in redistricting cases. See, e.g., Davis, 991 F.Supp.2d at 846 (awarding rates at upper end of range for large firms in relevant community to (1) in-state attorney who had "been practicing trial law in Texas since 1957, focusing on constitutional and redistricting litigation"; (2) a D.C.-based solo practitioner who had "extensive experience in redistricting," having co-written a book on the subject and conducted a voting rights institute at American University Law School; and (3) a partner of a D.C.-area law firm that was primarily responsible for representing some of the plaintiffs in the United States Supreme Court); Desena, 847 F.Supp.2d at 214-15 (rejecting demand for $595 per hour and awarding $475 hourly rate for out-of-state attorney with "over thirty years of legal experience, including extensive experience in the specialized field of election law"). Similarly, in a voting rights case in the Southern District of New York, the court in 1994 awarded a relatively high partner-level rate ($300) for lead counsel who was a "seasoned voting rights litigator" with fourteen years of litigation experience and academic publications in the field. Davis, 156 F.R.D. at 558.
Despite the applicability of the forum rule, several groups of Intervenors seek hourly rates in excess of $450 for a handful of attorneys. They argue that these rates are warranted in light of this case's complexity, expedited schedule, and resource requirements. See Rose Reply at 11 ("[T]his was a complicated case with many parties that required significant resources and specialized knowledge to comply with an accelerated schedule."); Ramos Mem. at 6 (arguing that this case "encompassed a complex, highly technical and specialized area of civil rights practice" that is "atypical for many civil rights and civil law practitioners," and "necessitate[d] the use of demographic and mapping expertise").
Even accepting the Intervenors' characterization of this case, this Court does not believe an upward departure from typical in-district rates is warranted here, for several reasons. First, to the extent that the compressed timeline placed heavy demands on the resources of counsel for the Intervenors, this demand is apparently reflected in the number of attorneys utilized and number of hours requested for reimbursement. There is no need to cumulatively compensate the Intervenors by also allowing an upward departure in hourly rates, particularly since the compressed timeline was taken into account in recommending that they not be penalized for potential overstaffing and lack of coordination. Additionally, the fact that this case required demographic and mapping expertise certainly justifies the Intervenors' use of experts, but does not warrant higher rates for the attorneys. Finally, this Court is not convinced that the specialized knowledge required in this case warrants fees exceeding the high end of the indistrict spectrum, since some of the attorneys in this case with the greatest amount of relevant experience — such as the Drayton Intervenors' Randolph McLaughlin — have requested rates within the established ranges for the Eastern District. See, e.g., infra p. 306.
The Ramos Intervenors' additional arguments in favor of higher rates are unconvincing. First, to justify awarding higher rates, the Ramos Intervenors point to the Jones Day law firm's representation of several members of the New York State Senate (the "Senate Majority") in defending this case. See Ramos Reply at 9. According to the firm's agreement with the Senate Majority, the hourly rates for two Jones Day partners on the case were $700 and $607.50, respectively, while two associates' time was billed at $427.50 and $360 per hour, respectively. See Declaration of Jackson Chin (Feb. 14, 2014) ("Second Chin Decl.") ¶ 6, DE # 617-1; Ex. B to Second Chin Decl., DE # 671-3 at 12, 16. As reflected in correspondence from Michael Ostrander, Special Assistant to the Secretary of the Senate, to the Office of the State Comptroller, the rationale for selecting Jones Day was that "[t]he area of law involving redistricting requires extremely specialized knowledge to handle the intricate federal requirements that must be met throughout the redistricting process." Ex. C to Second Chin Decl. at 2, DE # 671-4; see Second Chin Decl. ¶ 8. In this Court's view, however, the assortment of rates requested by experienced attorneys in this case, many of which fall within the approved range for Eastern District litigators, provide a more useful benchmark than the rates charged by a large
Finally, the Ramos Intervenors note that in NYC Firefighters, "a court in this forum found $550 an hour was an appropriate rate for partner level attorneys" based on "the complexity, effort and skill required for the case." Ramos Reply at 10 (citing NYC Firefighters, 2013 WL 5542459). In NYC Firefighters, the court ruled on the attorney's fee application of the plaintiff-intervenor Vulcan Society, which had alleged racial discrimination claims of disparate impact and disparate treatment based on the New York City Fire Department's hiring practices. See 2013 WL 5542459, at *1. The district court found that the "long-running litigation [
This Court agrees with the Ramos Intervenors that NYC Firefighters constitutes precedent for, in some limited circumstances, awarding hourly rates higher than $450. However, in light of the other considerations discussed above, the Intervenors have not convinced the undersigned magistrate judge (who was personally involved in the highly complex NYC Firefighters case) that such rates are appropriate here. Accordingly, this Court finds $450 per hour to be the highest reasonable rate for attorneys in this case, whose specific recommended rates are discussed on an individual basis below.
The AALDEF attorneys representing the Lee Intervenors in the congressional redistricting portion of this case were Jerry Vattamala and Glenn Magpantay. Vattamala, a Staff Attorney with AALDEF's Democracy Program, served as lead counsel to the Lee Intervenors. See Vattamala Decl. ¶¶ 1, 3. Vattamala has been an attorney for six years and clerked in the preceding two years. See id. ¶ 8. His first four years of practice were spent as a commercial litigation associate at Proskauer Rose LLP, and he has worked at AALDEF for almost three years. See id. Vattamala describes himself as "a recognized authority on minority voting rights and political participation," citing, inter alia, his experience litigating Voting Rights Act cases, testimony at hearings on redistricting, and participation on voting rights speaker panels. See id. For Vattamala's work on this case, the Lee Intervenors request an hourly rate of $300. This
The other AALDEF attorney working on this case, Glenn Magpantay, is the director of the organization's Democracy Program. Declaration of Glenn D. Magpantay (Dec. 20, 2013) ("Magpantay Decl.") ¶ 1, DE # 664. He has been a "voting rights and civil rights attorney for 15 years," and describes himself as "a recognized authority on minority voting rights and political participation."
In addition to the AALDEF attorneys, the Lee Intervenors were represented by attorneys James Herschlein and Noah Peters with the firm Kaye Scholer. Herschlein joined Kaye Scholer after graduating from law school in 1985 and currently serves as co-chair of the firm's Complex Commercial Litigation Department. See Herschlein Decl. ¶ 3; Ex. B to Herschlein Decl., DE # 661-2 at 2. Herschlein's legal experience is primarily in commercial litigation, with some involvement in civil rights litigation, including as co-counsel in Brown v. Giuliani, 98 Civ. 7743 (S.D.N.Y.), for which he received the Legal Aid Society's Pro Bono Publico Award. See Ex. B to Herschlein Decl. at 2; Herschlein Decl. ¶ 15. He apparently has no previous redistricting or voting rights experience, however.
Peters is a 2009 law graduate who clerked for two years after graduation and became an associate at Kaye Scholer in October 2011. Herschlein Decl. ¶ 16. "He has experience in numerous aspects of complex commercial litigation, and recently co-authored an amicus curiae brief submitted to the U.S. Supreme Court in a Voting Rights Act redistricting case from Texas." Id. Of course, Peters gained much of the experience cited by the Lee Intervenors after his involvement with the initial stages of this litigation, in connection with which the Lee Intervenors are seeking reimbursement. See Ex. B to Herschlein Decl.
The Lee Intervenors request higher Southern District rates for the Kaye Scholer attorneys, specifically $600 per hour for Herschlein and $350 for Peters, "[b]ecause Kaye Scholer is located in Manhattan...." Lee Mem. at 10-11.
In light of Eastern District norms, the Kaye Scholer attorneys' requested rates for their work on behalf of the Lee Intervenors are excessive. At the time the congressional redistricting phase of this case was litigated, Peters had virtually no experience as a litigator, much less in the area of civil rights. Similarly, Herschlein's civil rights experience is modest in comparison to the extensive resumes of numerous other attorneys involved in this case. According to the State, Herschlein and Peters should receive no more than $300 and $100 per hour, respectively, because of their limited civil rights experience. See Second Opp. at 13. Considering Herschlein's extensive civil litigation experience and competent advocacy in this case, this Court, however, believes that $400 is a reasonable rate for Herschlein. For Peters, $150 is a reasonable rate, lying at the approximate midpoint of rates for junior associates in this district. See NYC Firefighters, 2013 WL 5542459, at *6.
The Drayton Intervenors seek fees for work performed by Newman Ferrara and the CLSJ. The individuals associated with Newman Ferrara who worked on this case are Randolph McLaughlin, Jeffrey Norton, Courtney Chenette, and Dhara Patel. McLaughlin, who has been practicing civil rights law since joining the bar in 1979, acted as supervisor to the others. See First Drayton Mem. at 4-5. Additionally, he has authored scholarly articles on civil rights and voting rights, is a tenured law professor at Pace University School of Law, and serves as co-chair of the Civil Rights Practice Group at Newman Ferrara. See id. at 4. Almost twenty years ago, a court in the Southern District of New York noted McLaughlin's voting rights expertise, see Davis, 156 F.R.D. at 558, and McLaughlin has actively litigated in the field since that time, see McLaughlin Decl. ¶¶ 7-8. The Drayton Intervenors seek an hourly rate of $450 for McLaughlin's work in this case, see id. ¶ 11, which the States does not contest, see First Opp. at 8. The Court finds the requested rate reasonable in light of McLaughlin's extensive relevant experience.
Jeffrey Norton is a partner at Newman Ferrara and "chair of the firm's Class Action and Complex Litigation Practice Group...." First Drayton Mem. at 5. He has "over 17 years of experience" in a variety of practice areas, including civil rights, and he teaches mass torts and class action litigation at Pace Law School. McLaughlin Decl. ¶¶ 12, 15, 16. The Drayton Intervenors request a rate of $400 per hour for Norton. See First Drayton Mem. at 5. The State argues that Norton should command no more than $350 per hour because he is "a fairly junior partner with only sixteen years of experience as a lawyer with a specialty of mass torts and class-action litigation, as opposed to civil-rights litigation ...." First Opp. at 8. The Court, however, finds that $400 per hour, a rate near but not at the top of Eastern District rates for partners, is appropriate because of his many years of experience in complex civil litigation.
Courtney Chenette is a former law clerk and current associate of Newman Ferrara, see First Drayton Mem. at 5, having graduated from law school in 2012, see McLaughlin Decl. ¶ 17. As an associate, Chenette worked on Newman Ferrara's fee application on behalf of the Drayton Intervenors,
Dhara Patel worked on this case as a law clerk, and the Drayton Intervenors request $125 per hour for her work. See First Drayton Mem. at 5. Since the State does not object and other courts in this district have found $125 to be a reasonable hourly rate for law clerks, see NYC Firefighters, 2013 WL 5542459, at *8; Fuerst v. Fuerst, No. 10-CV-3941, 2012 WL 1145934, at *3 (E.D.N.Y. Apr. 5, 2012), this Court concludes that the requested rate is reasonable.
Two CLSJ attorneys, Joan Gibbs and Esmeralda Simmons, have also represented the Drayton Intervenors in this case. Joan Gibbs is the CLSJ's General Counsel, and she is the Drayton Intervenors' lead attorney. See Second Drayton Mem. at 5-7; First Gibbs Decl. ¶ 7. Since her admission to the bar in 1986, Gibbs "has devoted her entire legal career" to the practice of constitutional and civil rights law.
Esmeralda Simmons is the CLSJ's Executive Director. See First Gibbs Decl. ¶ 10. She has practiced constitutional and civil rights law since 1978 and has previous experience in redistricting litigation. See Second Drayton Mem. at 7-8. She was also appointed as "Vice Chair to the initial New York City Districting Commission" in the early 1990s. First Gibbs Decl. ¶ 13. For Simmons' work on this matter, the Drayton Intervenors seek $450 per hour, see Second Drayton Mem. at 4, a rate the State does not oppose, see Second Opp. at 14. This Court finds the requested rate reasonable.
The Ramos Intervenors were represented in this matter by LatinoJustice, and they seek fees for work performed by Juan Cartagena, Jackson Chin, Jose Perez, Rodrigo Diaz, and Natalie Knotts.
Jackson Chin serves as senior counsel with LatinoJustice and lead attorney for the Ramos Intervenors. See First Chin Decl. ¶¶ 1-2. He has been a member of the bar since 1987. See id. ¶ 11. Chin has litigated civil rights and voting rights cases with LatinoJustice since 2000, and participated in the litigation concerning New York's last redistricting cycle, Rodriguez v. Pataki. See First Chin. Decl. ¶¶ 12, 14. The State does not oppose the Ramos Intervenors' requested rate of $400 per hour for Chin's time. See Second Opp. at 13. The Court finds the requested rate reasonable.
Jose Perez has been a member of the bar since 1986. See First Chin Decl. ¶ 18. During the congressional redistricting phase of this litigation, Perez was LatinoJustice's Assistant General Counsel.
The Rose, Ramos, and Drayton Intervenors move for expert fee awards. The State asserts that expert fees are unavailable to the Intervenors under either section 1988 or 1973l. First, the State contends that section 1988 does not authorize shifting expert fees in section 1983 cases. See First Opp. at 9; Second Opp. at 10. Second, according to the State, section 19731 is inapplicable here because that provision "is part of the Voting Rights Act" and "this Court did not find a violation of [that act]." Second Opp. at 11.
Addressing the State's second argument, this Court concludes that the State's construction of section 1973l is unduly narrow and that reasonable expert fees are available in this case under that provision. Section 1973l authorizes an award of expert fees in "any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment...." 42 U.S.C. § 1973l(e); see also Jordan v. Allain, 619 F.Supp. 98, 104 (N.D.Miss.1985) ("[A] prevailing voting rights litigant is entitled to recover attorneys' fees regardless of the statutory or
The State contends, next, that no expert fee award is reasonable here because the issue on which the Intervenors prevailed was simple and did not require an expert. See Second Opp. at 11. In support, the State asserts that "[t]his Court used none of the expert declarations to make its basic finding that the previous district map violated the Equal Protection Clause." Id. According to the State, because the Intervenors used their respective experts to draw competing maps and this Court used its own expert to draw the Proposed Map, the Intervenors' experts were purportedly unnecessary. See id.
The State's argument is unavailing. The Panel explicitly authorized this Court to consider the parties' proposals, see Order of Referral (Feb. 28, 2012) ¶ 6, and special expertise was undoubtedly required to create such proposals,
The Rose Intervenors seek $6,000 in fees to pay for 15 hours of work by Dr. Stephen Ansolabehere. See Rose Mem. at 10. Having concluded, on the basis of their limited contributions and success, that the Rose Intervenors should not be awarded any attorney's fees, this Court likewise recommends that their request for expert fees be denied. See generally Husain v. Springer, No. 97 CV 2982(NG) (CLP), 2013 WL 1122718, at *11 (E.D.N.Y. Mar. 15, 2013) (reducing reimbursement for electronic research charges by same fees on the basis of partial success); NYC Firefighters, 2013 WL 5542459, at *13 (where plaintiff-intervenors prevailed on some but not all claims, court awarded "60% of the requested electronic research costs, corresponding to the 40% across-the-board reduction for attorney hours"); Kim v. Dial Serv. Int'l, Inc., No. 96 CIV. 3327(DLC), 1997 WL 458783, at *20 (S.D.N.Y. Aug. 11, 1997) (reducing award of costs by same percentage as attorney's fees on the basis of limited success).
The Drayton Intervenors seek expert fees for the services of Dr. Andrew Beveridge, Dr. Zulema Blair, Frank Lewis, and Edwin Dei. As an initial matter, all their expert fees should be reduced by at least 30 percent, to reflect the partial success achieved by the Drayton Intervenors. In addition, the fees of each individual expert should be further reduced or eliminated for the reasons discussed below.
Dr. Andrew Beveridge is a university professor whose areas of expertise "include demography, the statistical and quantitative analysis of social science datasets, most particularly including Census data, survey data and administrative records." Declaration of Andrew A. Beveridge (Nov. 19, 2013) ("Beveridge Decl.") ¶ 1, DE # 652-4. He has experience testifying as an expert in demographic and statistical analysis in federal and state courts across the country. See id. ¶ 2. In this case, Dr. Beveridge was engaged to assess the "Unity Congressional Plan" proposed by the Unity Maps coalition as well as other proposals submitted between February 27, 2012, and March 14, 2012. See id. ¶ 3. He drafted two declarations that were submitted to the Court, testified at the March 5, 2012 hearing, and assisted attorneys with various submissions. See id. The Drayton Intervenors seek a total of $15,200.00 for 76 hours of Dr. Beveridge's time, at a rate of $200 per hour, which is his customary fee for "work with public bodies and pro-bono cases." Beveridge Decl. ¶ 4; see McLaughlin Decl. ¶ 32. The State has voiced no objections to Beveridge's rate, which appears reasonable to this Court. Also, Dr. Beveridge's tasks and time records do not appear unreasonable, except to the extent that his records track time only in full hours. See Ex. E to McLaughlin Decl., DE # 652-5. In light of this imprecise billing, this Court recommends reducing the requested fee by an additional 10 percent (a total reduction of 40 percent), for a total award of $9,120. See La Barbera v. Pass 1234 Trucking, Inc., No. 04 CV 1364(SJ)(MDG), 2007 WL 2908175, at *7 (E.D.N.Y. Sept. 28, 2007) (reducing attorney's fee by 15% due to billing in quarter-hourly increments); DeStefano v. Astrue, No. 05-CV-3534 (NGG)(RLM), 2008 WL 623197, at *3 n. 5 (E.D.N.Y. Mar. 4, 2008) ("Although fifteen-minute increments are not unreasonable per se, [counsel's] time sheets are necessarily less precise than they could be, and may be reduced on that basis.") (citation omitted), adopted, 2008 WL 2039471 (E.D.N.Y. May 9, 2008).
Another of the Drayton Intervenors' experts, Frank Lewis, is "an Adjunct Instructor at New York University where he has taught courses in ... Mathematics, Statistics, Economics, Finance and Information Systems over the span of nineteen years." Second Drayton Mem. at 9. Lewis' redistricting experience spans the last three redistricting cycles," and he "was one of the main co-authors of the 2011 Unity Congressional Plan," having drawn the Black majority-minority districts. Id. at 10. He "also provided background information to the [Drayton Intervenors'] counsel" for use in their complaint and other submissions. Id. The Drayton Intervenors seek an award for 74 hours of Lewis' work at a rate of $150 per hour. The requested hourly rate, which the State does not challenge, appears reasonable to this Court. Lewis' time records are also reasonable, except to the extent they track time in one-hour increments. See Affidavit of Frank C. Lewis (Dec. 19, 2013) ("Lewis Aff.") ¶ 7; Ex. B to Lewis Aff. This Court therefore recommends awarding the requested amount reduced by an additional 10 percent (a total reduction of 40 percent), or $6,660.
This Court is of the same opinion with respect to Edwin Dei. Dei, who has "extensive experience in research and statistical analysis," Second Drayton Mem. at 11, states that his "primary responsibility was to assist in the development of Black majority-minority districts in the 2012 Unity Plan Congressional map," Declaration of Edwin Dei (Dec. 19, 2013) ("Dei Decl.") ¶ 4, DE # 658-5. He asserts that, to this end, he "reviewed and analyzed census data and other relevant data, met with and had telephone conferences" with counsel and (other) experts for the Drayton, Lee, and Ramos Intervenors. Id. The Drayton Intervenors seek compensation for nine hours of work by Dei at a rate of $75 per hour. See Second Drayton Mem. at 11. However, since every entry in Dei's time records references a meeting, see Ex. B to Dei Decl., it is unclear what value was added by Dei's involvement. Based on the Drayton Intervenors' submissions, the Court cannot conclude that Dei's services were necessary in this case. Hence, this Court recommends that the Drayton Intervenors not be reimbursed for either Blair or Dei's fees.
The Ramos Intervenors seek reimbursement for the services of Asher Ross. Ross "served as a Demography, Database, and GIS consultant, preparing and analyzing demographic and geographic data from the 2000 and 2010 censuses as well as the data issued in the American Community Survey." Declaration of Asher Ross ("Ross Decl.") ¶ 3, DE # 657-4. Specifically, he prepared and analyzed data used in creating the Ramos Intervenors' proposed congressional districts and also helped review alternative proposals. See id. ¶ 4. The Ramos Intervenors seek a total of $4,270 in expert fees to reimburse them for 122 hours of Ross' time, billed at
Under sections 19731 and 1988, the court may award prevailing parties their reasonable costs incurred in pursuing the litigation. See 42 U.S.C. §§ 1973l(e), 1988(b); LeBlancSternberg, 143 F.3d at 763 ("[A]ttorney's fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.") (internal quotation marks omitted) (quoting United States Football League v. National Football League, 887 F.2d 408, 416 (2d Cir.1989)); Kuzma v. Internal Revenue Service, 821 F.2d 930, 933-34 (2d Cir.1987) ("Identifiable, out-of-pocket disbursements for items such as photocopying, travel, and telephone costs are generally taxable under § 1988 and are often distinguished from nonrecoverable routine office overhead, which must normally be absorbed within the attorney's hourly rate.").
The Rose Intervenors seek $8,108.32 for litigation expenses. See Rose Mem. at 10. For the same reasons this Court has recommended denying the Rose Intervenors' requests for attorney's fees and expert fees, this Court recommends denying their request for litigation expenses.
The Drayton Intervenors seek photocopying and Federal Express charges incurred in connection with this matter. First Drayton Mem. at 6. The total amount claimed is $798.59. See McLaughlin Decl. ¶ 31; Ex. B to McLaughlin Decl. at 6-7. However, based on the dates associated with the itemized charges, this Court concludes that only the first listed item is related to the congressional redistricting portion of this case. See Ex. B to McLaughlin Decl. at 6-7. Hence, this Court recommends granting costs for only the first item — photocopies on March 5, 2012 — for a total of $0.75.
This Court respectfully recommends (1) that the Rose Intervenors' request for attorney's fees, expert fees, and costs be denied entirely; (2) that the Lee Intervenors be awarded $61,444 in attorney's fees; (3) that the Drayton Intervenors be awarded $88,502.75 in attorney's fees, $15,780 in expert fees, and $0.75 in litigation expenses; and (4) that the Ramos Intervenors be awarded $97,196.25 in attorney's fees.
Any objections to the recommendations contained herein must be filed on or before June 6, 2014. Failure to file objections in a timely manner may waive a right to appeal the resulting court order.
Dated: Brooklyn, New York, May 20, 2014.
APPENDIX A-LEE INTERVENORS' HOURS AND RATES
Requested Requested Recommended Recommended Recommended
Timekeeper Hours Rate Hours Rate Award
James 75.76 $600 60.61 $400 $24,244
Herschlein
Noah Peters 124.5 $350 99.6 $150 $14,940
Glenn 18 $350 14.4 $350 $5,040
Magpantay
Jerry Vattamala 71.75 $300 57.4 $300 $17,220
TOTAL: $61,444
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APPENDIX B-DRAYTON INTERVENORS' HOURS AND RATES
Requested Requested Recommended Recommended Recommended
Timekeeper Hours Rate Hours Rate Award
Joan Gibbs 110 $400 77 $400 $30,800
Esmeralda 91.25 $450 61.88 $450 $27,846
Simmons
Randolph 94 $450 51.38 $450 $23,121
McLaughlin
Jeffrey Norton 24.7 $400 14.91 $400 $5,964
Courtney 3.6 (as associate) $200 2.52 $150 $378
Chenette
Dhara Patel 4.5 $125 3.15 $125 $393.75
TOTAL: $88,502.75
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APPENDIX C-RAMOS INTERVENORS' HOURS AND RATES
Requested Requested Recommended Recommended Recommended
Timekeeper Hours Rate Hours Rate Award
Juan Cartagena 37.7 $550 25.48 $450 $11,466
Jose Perez 83.9 $425 57.37 $425 $24382.25
Jackson Chin 221.5 $400 153.37 $400 $61,348
TOTAL: $97,196.25
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