JOHN GLEESON, District Judge:
Helen Hugee sued her landlord, Kimso Apartments, LLC ("Kimso"), and the business entity that manages her apartment building, for disability discrimination. After the suit was filed, Kimso completed all of Hugee's desired repairs and Hugee no longer felt any need to continue her lawsuit. Hugee settled with the defendants for $500 cash, but the settlement agreement, which was signed outside the presence of Hugee's attorney and without his knowledge, did not make any provision for attorney's fees. Hugee's attorney, Adam Hanski, here seeks an award of attorney's fees and costs. For the reasons explained below, Hugee's motion for attorney's fees and costs is granted to the extent of the amount set forth herein.
The court held two evidentiary hearings on this matter — one on January 5, 2012, and another on January 27, 2012. The court finds the following facts based on the testimony and exhibits introduced at the hearings.
Helen Hugee is a resident of 240 Park Hill Avenue, Apartment 2C, Staten Island, New York, 10304, and a tenant of the defendant Kimso. Hugee at 8.
On multiple occasions prior to mid-2011, Hugee asked Kimso to make modifications to her apartment that she (correctly) believed were required by law: the doorways to her kitchen, bedroom and bathroom needed widening; the kitchen and bathroom cabinets needed lowering; and grab bars needed to be installed next to the shower and toilet in her bathroom. Hugee at 13, 29. Kimso refused to make Hugee's requested modifications unless Hugee paid for them. Id. at 13. Hugee's requests were generally made orally to her apartment building's rental or management office. Id. at 15.
Weary of living in apartments they felt did not comply with the federal and state anti-discrimination laws, Hugee and some other disabled tenants, including Thomas Nimely, discussed getting help from a lawyer. Id. at 14, 27-28. Through Nimely,
At Hugee's invitation, Hanski came to Hugee's apartment to discuss her need for the structural alterations described above. Id. at 28-30. Hanski agreed to represent Hugee in her effort to get Kimso to make the alterations at its own expense, not Hugee's. The plan was to first send a letter requesting that the work be performed. Id. at 14-15. If the landlord did not respond to the letter requesting modifications and accommodations, Hugee and Hanski agreed that Hanski would file a lawsuit on her behalf. Id. at 22.
Hanski ghost-wrote a letter for Hugee addressed to Kimso and dated September 16, 2011. It requested all of the above-mentioned modifications to Hugee's apartment, as well as the following modifications to the shared areas of the apartment building: (1) installation of a ramp at the main entrance; (2) repair and maintenance of a ramp at the back of the building; and (3) elevator maintenance, repair or replacement and the provision of alternative accommodations when the elevator is out of service. Cf. Ex. G;
Not having received a response to this letter, Hanski filed this lawsuit on October 13, 2011, alleging that Kimso had repeatedly refused or ignored Hugee's reasonable accommodation requests.
Unithree eventually responded to Hugee's letter. In a letter to Hugee dated October 27, 2011, Unithree agreed to lower the cabinets in Hugee's bathroom and kitchen and to install grab bars next to her shower and toilet, at its own expense. Ex. G. Unithree also agreed to "determine the financial and structural feasibility of widening" her kitchen, bathroom, and bedroom doorways. Id. Unithree refused to install a ramp at the front of the building, and it agreed to replace the ramp at the back of the building only if Hugee would pay for it. Id. Finally, Unithree stated that it "makes great efforts at ensuring the continuous operability and safety of the elevator in your building." Id.
Kimso began making the modifications to Hugee's apartment on or around November 15, 2011. Hugee at 23-24; see also Ex. H. Kimso made all of the repairs that Hugee requested inside her apartment unit. Ruiz at 145-46; Hugee at 16-17. The work took about 20 days and was completed around December 12, 2011. Ruiz at 145; Hugee at 17; see also Ex. J. Hugee was happy and satisfied with the work. Ruiz at 146; Hugee at 17-19, 21-22.
Meanwhile, when he learned of this lawsuit (and of the companion lawsuits filed by Nimely
Shah thereupon set upon a course to avoid paying attorneys' fees in any of the three cases and to ruin Hanski. In early December 2011, Shah prepared various documents for Hugee, Davis and Nimely to sign. One was a settlement agreement purporting to resolve each tenant's respective lawsuit for a sum of $100.
Worse yet, Shah used Graham to manipulate Hugee to sign a serious misconduct complaint about Hanski to the New York State Bar Association. See Ex. P. The letter falsely stated that Hanski came to Hugee's home uninvited as part of his practice of "preying on poor people, like me, who are disabled." Id. The letter falsely accused Hanski of conduct that was "unprofessional and unethical at best and outright predatory and fraudulent at worst." Id. It called for an investigation of Hanski and asked that he be disciplined. Id. Hugee signed this document, along with the others, at Graham's urging on December 12, 2011. Id.
It was Shah who was doing the preying on disabled people, not Hanski. In fact, Hugee was pleased with Hanski, whose legal services she had sought, along with her fellow tenants. Once Hanski arrived on the scene, they got the physical alterations that had been repeatedly denied in the past.
As odious as Shah's conduct in connection with Hugee's case was, it pales in comparison to what he did with respect to the cases filed by Davis and Nimely. With no basis at all to conclude they were dissatisfied even in the slightest with Hanski, he prepared a similar set of false documents for Davis and Nimely to sign, including identical complaints to the New York States Bar Association. Shah in fact did not believe that Hanski was victimizing anyone. Rather, he believed he could manipulate the three disabled tenants into signing false statements simply by finally doing the required work on their apartments. By taking advantage of the disabled tenants in this way, he believed he could terminate the lawsuits without paying Hanski's legal fees and teach Hanski a lesson not to represent any of his tenants.
Shah got Graham to get Hugee to unknowingly sign the phony accusatory documents. He got a maintenance employee, Luis Ruiz, to similarly prevail on the infirm Davis, who has since died. Shah at 95; see also Davis, ECF No. 9 (attaching signed documents as exhibits); Davis, ECF No. 26 (announcing death). And through Graham he tried repeatedly to get Nimely to sign them as well.
Graham and another woman named Marjorie Garvin visited Nimely's apartment on numerous occasions. Nimely at 14, 15-16; Shah at 101; Graham at 130-31. Graham and Garvin told Nimely that his lawyer was no good and offered him money if he would sign the papers. Nimely at 16, 19.
Finally, Shah got Graham to induce Hugee to stay away from the evidentiary hearing on January 5, 2012. Graham at
This lawsuit was commenced on October 13, 2011. See Compl. The Complaint alleged that Kimso had repeatedly refused or ignored Hugee's reasonable accommodation requests, and asserted causes of action for: (1) violation of the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et seq.;
On December 22, 2011, this court received a letter apparently from Hugee dated December 12, 2011, addressed to the Clerk of the Court, informing the court that this lawsuit was commenced without Hugee's knowledge, consent or authorization. ECF No. 10. The letter further stated that Hugee had fired Hanski as her
On December 27, 2011, Hanski filed a letter contesting that he had solicited Hugee as a client without invitation, and stating that Hugee had told him she was happy with his services. ECF No. 12. The letter also stated that Hugee had told Hanski that she was unaware that she had signed any letters addressed to the court or to the Bar Association or otherwise complaining about Hanski's representation. Id.
On December 28, 2011, Hanski filed a motion for a protective order to prevent Kimso from communicating with Hugee or her family about the action. ECF No. 13. The motion also sought an order voiding the false letters that Hugee denied signing. Id.
Also on December 28, 2011, Kimso opposed the effort to void the false documents and the entry of a protective order. ECF No. 15. Counsel for Kimso represented that any communications between Kimso and Hugee had been done in the absence of Kimso's counsel. Id. Kimso's counsel stated that the principals of the lawsuit should be encouraged to communicate with each other to resolve their dispute without the assistance of counsel "to avoid swelling the Court's docket with frivolous and unripe actions, as in this case." Id. at 2. Kimso's counsel attached as exhibits to its letter the Acknowledgment by Affidavit (that we now know was drafted by Shah) that Hugee signed on December 12, 2011, acknowledging that her requested repairs had been completed and stating that Kimso "has not discriminated against me due to my disability in any form, way, shape or manner and actually treated me and my disability with the utmost respect and shown commendable sensitivity." ECF No. 15, Ex. A. Next to the typed words reading, "Management has also agreed to place me on the priority transfer list for a lobby floor apartment," Hugee wrote by hand, "I am completely satisfied with my current apartment and have no desire to transfer," next to which she placed her initials. Id.
On January 5, 2012, Hanski filed a motion to strike and void each of the letters purportedly signed by Hugee that were mailed to the Clerk of Court. ECF No. 17. Hanski attached a handwritten affidavit signed by Hugee on January 3, 2012, stating in full:
ECF No. 17, Ex. A.
On the morning of January 5, 2012, the court held an evidentiary hearing to determine whether Hugee's lawsuit had been settled, whether to strike or void the letters filed with the court, and whether any protective order should issue. See ECF
On January 27, 2012, the court continued the hearing to hear testimony from Hugee. Based on the evidence presented at the two hearings, the court made some factual findings on the record. The court found that Hugee's case has been settled, pending a determination of attorney's fees. The court also stated on the record that, disturbingly with the complicity of her own sister, Hugee had been induced to sign a false letter dated December 12, 2011,
On February 8, 2012, Hanski filed his motion for attorney's fees, seeking an award of $57,030 in fees and costs, exclusive of any fees or costs accruing due to work on the fee motion itself. Pl.'s Mo. for Atty Fees, ECF No. 30. On February 17, 2012, Kimso opposed any fee award, and also "strongly dispute[d]" Hanski's "egregiously excessive fee submissions." Kimso Opp., ECF No. 31. Hanski filed a reply on February 22, 2012, ECF No. 32, to which Kimso filed a surreply on March 5, 2012, ECF No. 34. On March 8, 2012, Hanski filed an opposition to Kimso's surreply. ECF No. 35. On March 9, 2012, this court entered an order directing the parties not to file any more submissions regarding Hanski's motion for attorney's fees unless and until expressly requested to do so by the court. The motion has been fully briefed.
Both city and federal law condition a fee-shifting award on the party's achieving "prevailing party" status. See 42 U.S.C. § 3613(c)(2) ("In a civil action [alleging a discriminatory housing practice], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee and costs."); NYC Admin. Code § 8-502(f) ("In any civil action [by a person claiming to be aggrieved by an unlawful discriminatory practice as defined in chapter one of this title], the court, in its discretion, may award the prevailing party costs and reasonable attorney's fees."). Therefore, the threshold question in deciding whether to award attorney's fees and costs is whether Hugee was a prevailing party. Federal and city law have different standards for answering that question.
The Supreme Court has rejected the so-called "catalyst theory" as a basis for an award of attorney's fees under federal law. In Buckhannon, an FHA and ADA case, the Supreme Court described the catalyst theory as positing that "a plaintiff is a
The Court based its rejection of the catalyst theory on the plain meaning of the term "prevailing party," which the Court held to mean "one who has been awarded some relief by the court." Id. at 603, 121 S.Ct. 1835. The Court also expressed concern that recognizing the catalyst theory would "spawn[] a second litigation of significant dimension," because the analysis, which requires the court to determine "whether the lawsuit was a substantial rather than an insubstantial cause of the defendant's change in conduct" and "whether the defendant's change in conduct was motivated by the plaintiff's threat of victory rather than threat of expense," is a "highly factbound inquiry" and "is clearly not a formula for ready administrability." Id. at 609-10, 121 S.Ct. 1835 (internal quotation marks omitted).
"[I]n order to be considered a `prevailing party' after Buckhannon, a plaintiff must not only achieve some `material alteration of the legal relationship of the parties,' but that change must also be judicially sanctioned." Roberson v. Giuliani, 346 F.3d 75, 79 (2d Cir.2003) (quoting Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835) (§ 1983 case); see also Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (holding that the same standards are "generally applicable in all cases in which Congress has authorized an award of fees to a `prevailing party'"). The Buckhannon Court concluded that "enforceable judgments on the merits" and "settlement agreements enforced through a consent decree" constitute sufficient "material alteration[s] of the legal relationship of the parties" to justify attorney's fee awards. Id. at 604-05, 121 S.Ct. 1835 (internal quotation marks omitted). The Second Circuit has subsequently held that these two forms of relief identified in Buckhannon were merely "examples" rather than the exclusive avenues to achieving prevailing party status. Roberson, 346 F.3d at 80-81. Accordingly, "judicial action other than a judgment on the merits or a consent decree can support an award of attorney's fees, so long as such action carries with it sufficient judicial imprimatur." Id. at 81.
The Roberson court went on to hold that where the parties reached a private settlement agreement that expressly conditioned its effectiveness on the court's retaining jurisdiction to enforce the settlement, and where the Stipulation and Order of Discontinuance signed by the court also expressly provided that the court "shall retain jurisdiction over the settlement agreement for enforcement purposes," the court's order "gave judicial sanction to a change in the legal relationship of the parties," and so the plaintiffs were properly considered "prevailing parties" entitled to an award of attorney's fees. Id. at 83. The court explained that "the district court's retention of jurisdiction
A private settlement agreement, by contrast, does not "entail the judicial approval and oversight involved in consent decrees," and is not alone a sufficient material alteration of the parties' legal relationship to justify an award of attorney's fees. See Buckhannon, 532 U.S. at 604 n. 7, 121 S.Ct. 1835. Moreover, even a court's "so ordering" a stipulation of dismissal, without more, does not carry with it a "sufficient judicial imprimatur" to confer prevailing party status, where the stipulation does not "contain a provision expressly retaining jurisdiction to monitor compliance," and "there is nothing in the record indicating that the District Court carefully reviewed the terms of the stipulation ... before `so ordering' it." Torres v. Walker, 356 F.3d 238, 244 (2d Cir.2004); see also Bell v. Bd. of Cnty. Comm'rs of Jefferson Cnty., 451 F.3d 1097, 1103 (10th Cir.2006) ("[I]f a court does not incorporate a private settlement into an order, does not sign or otherwise provide written approval of the settlement's terms, and does not retain jurisdiction to enforce performance of the obligations assumed by the settling parties, the settlement does not bear any of the marks of a consent decree and does not confer prevailing party status on the party whose claims have been compromised. A fee award cannot be based on an order that merely recognizes the fact of the parties' agreement and dismisses the case because there is no longer a dispute before it." (internal quotation marks and citations omitted)); Hess v. Astrue, No. 09-CV-2516 (ENV)(VVP), 2010 WL 2723221, at *2 (E.D.N.Y. Apr. 2, 2010) (recommending against prevailing party
Here, the parties entered into a private settlement agreement, in which Hugee agreed to dismiss her lawsuit and release all claims against Kimso in exchange for the modifications made to her apartment unit and $500 in cash. See Ex. I. The agreement did not provide for judicial supervision of the agreement's enforcement, nor did it condition its effectiveness on any action by the court. The court has not incorporated the terms of the settlement agreement into an order of the court, nor does the court have jurisdiction to enforce the terms of the settlement agreement. Indeed, the parties have not even submitted a stipulation and order of dismissal for the court to "so order." This case thus presents even less judicial imprimatur than the insufficient "so-ordering" action in Torres, 356 F.3d at 244. Moreover, the agreement itself makes no provision for attorney's fees and provides that "this Agreement shall not be deemed admission of wrongdoing, fault or liability on part of either side," and "the parties hereby expressly disclaim and deny any such liability." Ex. I at 1-2. On these facts, the settlement agreement reached by the parties was clearly a wholly private "nonjudicial alteration of actual circumstances," Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835 (internal quotation marks omitted), which does not involve any judicial imprimatur so as to render Hugee a prevailing party under the FHA. "Even though plaintiff[] obtained the relief [she] sought, that change was brought about by defendant and not the Court." Hess, 2010 WL 2710447, at *2; see also Perez, 587 F.3d at 152 ("[D]ismissal was effectuated by ... [the] mutual agreement of the parties, and did not require any judicial action...." (quoting Hester Indus., Inc. v. Tyson Foods, Inc., 160 F.3d 911, 916 (2d Cir. 1998))).
Moreover, the judicial time, court filings, and witness inconvenience occasioned by this "highly factbound" post-settlement fee award application well exemplify the "second litigation of significant dimension" the Supreme Court specifically cautioned against countenancing under federal fee-shifting statutes. Buckhannon, 532 U.S. at 609-10, 121 S.Ct. 1835 (internal quotation marks omitted). Accordingly, no fee award can be entered on the FHA claim.
In direct contrast to federal law, New York City's Human Rights Law expressly recognizes the catalyst theory of prevailing party status, statutorily providing:
NYC Admin. Code § 8-502(f). In 2005, the City Council amended the city's Human Rights Law to clarify that "[t]he provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed." Id. § 8-130. Moreover, courts must construe all "provisions of the City's Human Rights Law[] broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible." Albunio v. City of New York, 16 N.Y.3d 472, 477-78, 922 N.Y.S.2d 244, 947 N.E.2d 135 (2011). Thus, the question of whether Hugee was a prevailing party under city law is whether Hugee's "commencement of litigation... acted as a catalyst to effect policy change" by Kimso, bearing in mind that I must endeavor to interpret this provision in favor of Hugee to the extent reasonably possible.
The facts as elicited at the hearings in this case demonstrate that for at least a year preceding the filing of this lawsuit, Hugee made repeated requests to the management of her apartment building for structural modifications to her apartment unit, which were either ignored or denied with the caveat that she could undertake such modifications at her own expense. Eventually, she joined forces with a few other tenants with mobility impairments who were similarly frustrated with inaccessibility problems and the management's unresponsiveness to their requests. These tenants decided to seek legal help with their situation. Through fellow tenant Nimely, Hugee was introduced to Hanski, who agreed to help her secure structural modifications at Kimso's expense. Hanski made similar agreements with Nimely and Davis.
On September 16, 2011, Hugee signed and sent to Kimso a letter requesting modifications. Although Hanski drafted this letter, apparently his name did not appear on the document, nor did the letter mention that Hugee had retained counsel. Cf. Ex. G (Kimso response letter to Hugee); Ex. B (Nimely, ECF No. 20) (Nimely letter to Kimso, drafted by Hanski); Compl. ¶¶ 28-31. The letter requested that Kimso respond to Hugee no later than October 3, 2011. See Compl. ¶ 32. Kimso did not respond to the letter in any way prior to October 3, 2011.
On October 13, 2011, this lawsuit was filed, demanding that Kimso undertake the structural modifications requested in the
The first time Kimso showed any responsiveness to Hugee's requests was in a letter addressed to Hugee dated October 27, 2011. Ex. G. In the letter, Kimso's managing agent, Unithree, agreed to make, or investigate the feasibility of making, most of Hugee's requested modifications to her apartment unit, but generally refused to make the requested modifications to the building's public areas. Id.
It is undisputed that on or around November 15, 2011, Kimso started making the requested modifications to Hugee's apartment. Hugee at 23-24; Bagliore at 53; Ex. H. By December 12, 2011, the work was done, and Hugee was fully satisfied with her apartment. Ruiz at 145; Hugee at 17; Ex. J. Around the same time, Kimso completed the requested modifications in the other plaintiffs' units as well: work began on Davis's apartment on November 15 and ended on November 18, Bagliore at 59; and work began on Nimely's unit on November 17 and ended on December 7, Bagliore at 44-45.
A simple retelling of this timeline is enough to demonstrate that Hanski's intervention was clearly a catalyst for Kimso's sudden responsiveness to Hugee's requests. While Kimso had ignored her requests for over a year, once Hanski came on board, Kimso made all of Hugee's requested modifications, at its own expense, within a very brief time period.
The only problem here is that it is not merely Hanski's intervention that must catalyze Kimso's about-face; it must be the "commencement of litigation" that drives the change in order for Hugee to qualify as a "prevailing party." By October 27, Kimso demonstrated a willingness to provide at least some of Hugee's requested modifications. This is a mere two days after Hugee's Complaint was served on the Secretary of State. The shortness of that time period weakens the inference that Kimso was already aware of and acting in response to the filing of the lawsuit at that time.
Nonetheless, because I am obliged to construe the city's fee-shifting provision as favorably to Hugee as possible, I conclude on this record that Hugee's lawsuit "acted as a catalyst" to alter Kimso's policy toward undertaking such modifications, after which Kimso "implemented voluntarily" the modifications. NYC Admin. Code § 8-502(f). Hugee filed and served her lawsuit before Kimso indicated any willingness to make any modifications. Hugee's September 16 letter to Kimso put it on notice that she would likely take further legal action if she did not receive a response by the stated deadline of October 3. When Kimso did not respond by October 3, it was reasonable for it to foresee future legal action by Hugee. Although only two days passed between service of the Complaint
In sum, I conclude that Hugee was a prevailing party for purposes of New York City's Human Rights Law, rendering her eligible for an attorney fee award under section 8-502(f) of the Administrative Code of the City of New York.
"A plaintiff 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). "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. (internal citations omitted). "[A] `reasonable' fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case." Perdue v. Kenny A., ___ U.S. ___, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010).
In awarding attorney's fees under the New York City Human Rights Law, the court can use the same principles that govern such awards in federal civil rights cases. McGrath v. Toys "R" Us, Inc., 3 N.Y.3d 421, 426, 429, 788 N.Y.S.2d 281, 821 N.E.2d 519 (2004) (holding that NYC Admin. Code § 8-502(f) should be interpreted "consistently with federal precedent" because "the attorney's fee provision of the New York City Human Rights Law is textually indistinguishable from the federal statutes"). The starting point for determining a reasonable attorney's fee in a federal civil rights action is the "lodestar," which is "calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) (internal quotation omitted). The lodestar figure constitutes a "presumptively reasonable fee." Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir.2008). It is "strong[ly]" presumed that the lodestar represents a reasonable fee, precisely because the lodestar's calculus "includes most, if not all, of the relevant
The court must determine the reasonable hourly rate by reference to "the prevailing market rates in the relevant community," Perdue, 130 S.Ct. at 1672 (quoting Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)), "for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541. The relevant community is the district in which the case is litigated. Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 174 (2d Cir.2009); Lochren v. Cnty. of Suffolk, 344 Fed.Appx. 706, 708 (2d Cir.2009); Arbor Hill, 522 F.3d at 191. The burden rests with the prevailing party "to justify the reasonableness of the requested rate." Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541. The attorney should "establish his hourly rate with `satisfactory evidence — in addition to the attorney's own affidavits.'" Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1059 (2d Cir.1989) (quoting Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541). The court may also rely on "judicial notice of the rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district." Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir.2005). "The specific rate that is reasonable for a given attorney depends on such factors as the attorney's experience and expertise, the novelty and complexity of the issues presented, and the overall success achieved in the case." Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d 157, 204 (E.D.N.Y.2006) (quoting Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir.1997)); see also Simmonds v. N.Y. City Dep't of Corr., No. 06 Civ. 5298(NRB), 2008 WL 4303474, at *3 (S.D.N.Y. Sept. 16, 2008) ("The gravamen of a reasonable rate remains the market rate that a reasonable client would expect to pay given `the nature of the representation and type of work involved in a case.'" (quoting Arbor Hill, 522 F.3d at 184 n. 2)).
Hanski requests that the court award him a rate of $400 per hour. He supports his request with a declaration asserting that $400 per hour is his "current hourly rate," Hanski Dec. ¶ 27, ECF No. 30-1, and with citations to case law that he contends stand for the proposition that "$400 is a reasonable current rate for a law firm partner prosecuting for victims of housing discrimination." Pl.'s Mo. for Atty Fees at 5.
Recent opinions from the Eastern District of New York have determined that reasonable hourly rates in this district "are approximately $300-$450 per hour for partners, $200-$300 per hour for senior associates, and $100-$200 per hour for junior
The highest rates in this district are reserved for expert trial attorneys with extensive experience before the federal bar, who specialize in the practice of civil rights law and are recognized by their peers as leaders and experts in their fields. See Luca, 698 F.Supp.2d at 301 (awarding rate of $400 per hour to partner with over 25 years of experience "specializing in plaintiffs-side civil rights cases," whose "peers recognize him as an authority in his specialty, as evidenced by his numerous teaching and speaking engagements," and who has handled roughly 180 civil rights cases in the Eastern District of New York alone); Brady, 455 F.Supp.2d at 205-08 (awarding rate of $350 per hour to partner with "over ten years experience practicing law," "impressive academic and professional achievements establish[ing] that he is an experienced labor lawyer and an expert in his field," whose "writing has been published in several scholarly and professional journals," and who "has made multiple appearances as a labor law expert in the lay media"); Lochren, 2010 WL 1207418, at *3 (awarding partner with 49 years of experience $450 per hour); Duke v. Cnty. of Nassau, No. 97-CV-1495 (JS), 2003 WL 23315463, at *2 (E.D.N.Y. Apr. 14, 2003) (awarding $300 per hour — then a high-water mark for the Eastern District of New York — to "experienced trial attorney with many years of experience before the federal bar," "specializing in the practice of civil rights law," who had achieved a significant victory after a jury trial).
Hanski's declaration provides some background on his experience in civil rights litigation. Hanski graduated from the Law Center of the University of Southern California in 1997, where he was on the Interdisciplinary Law Journal. Hanski Dec. ¶ 21. After graduation, Hanski clerked for two federal bankruptcy court judges. Id. ¶ 22. Hanski then worked in private practice for two years, a year each at two different law firms, on unspecified matters. Id. ¶ 23. Neither of the two law firms that Hanski worked for have a practice in civil rights or housing discrimination litigation. See Dewey & LeBoeuf, Services, http://www.deweyleboeuf.com/en/Services; Whitman Breed Abbott & Morgan LLC, Practice Areas, http://whitmanbreed.com/1_practice.html.
Beginning in September 2000, Hanski enrolled in Columbia University's Graduate School of Architecture, where he earned a Masters of Science in Real Estate Development in September 2001. Hanski Dec. ¶ 24. From March 2002 through January 2011, Hanski worked in real estate private equity, which one industry organization has defined as "equity capital raised for a dedicated program of investing directly into property, primarily." See Private Equity Real Estate at 34 (May 2009), available at http://www.privateequityrealestate.net/resources/PERE% 2030/PERE_30_ExecutiveSummary.pdf (last visited March 27, 2012).
In early 2011, Hanski "decided to refocus [his] career on the legal side of real estate, particularly as relates to the rights of people with disabilities in relation to the built environment and thereafter formed Hanski Law Practice, LLC." Hanski Dec. ¶ 26. A search of the dockets of the Eastern and Southern Districts of New York reveals that through his newly created law practice, Hanski has filed 22 lawsuits — all since August 2011, and many with the same plaintiffs that appear in the related cases before me: Thomas Nimely and Alona
Although I commend Hanski on his intrepidity in embarking on this new career path, his current level of experience in civil rights litigation is much closer to a junior associate than the senior partner whose hourly rate he hopes to claim. Hanski's declaration leads me to conclude that he had no prior experience bringing or litigating civil rights claims — and, indeed, apparently no litigation experience whatsoever — prior to forming Hanski Law Practice, LLC, in 2011, and filing the lawsuits initiated in the fall 2011. As best I can tell, Hanski had never drafted or filed a complaint in his life until August 9, 2011,
I conclude that Hanski's reasonable billing rate is $200 per hour, which is commensurate with the high end of a junior associate rate or the low end of a senior associate rate,
I also accept Hanski's rate reduction of 50% for travel time. See Perdue, 130 S.Ct. at 1670 (apparently approving of district court's decision to "halve[] the hourly rate for travel hours"); Barfield v. N.Y. City Health & Hospitals Corp., 537 F.3d 132, 139, 151 (2d Cir.2008) (affirming district court's determination that "travel time by counsel should be compensated at half-rate, in accordance with established court custom"); U.S. ex rel. Feldman v. Van Gorp, No. 03 Civ. 8135(WHP), 2011 WL 651829 (S.D.N.Y. Feb. 9, 2011) (discounting fees for necessary travel time by 50%); LV v. N.Y. City Dep't of Educ., 700 F.Supp.2d 510, 526 (S.D.N.Y.2010) ("Courts in this Circuit regularly reduce attorneys' fees by 50 percent for travel time."); Kochisarli v. Tenoso, No. 02-CV-4320 (DRH)(MLO), 2008 WL 1882662, at *8 (E.D.N.Y. Apr. 24, 2008) ("[T]ravel time is appropriately reimbursed at one-half of the determined hourly rate."); Cioffi, 465 F.Supp.2d at 219 ("[T]ravel time ... is to be reimbursed at one-half of the determined hourly rate."). See generally McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 98 (2d Cir.2006) ("[D]ifferent rates can be set for different litigation tasks" (citing Cohen v. W. Haven Bd. of Police Comm'rs., 638 F.2d 496, 505 (2d Cir.1980))).
However, I decline to award Hanski his requested 25% rate for ministerial tasks, and instead disallow compensation for those hours entirely. See Barfield, 537 F.3d at 139 (approving district court's determination that time "spent on administrative tasks should not be compensated at all"); Concrete Flotation Sys., Inc. v. Tadco Const. Corp., No. 07-CV-319 (ARR)(VVP), 2010 WL 2539661, at *1 (E.D.N.Y. June 17, 2010) (excluding all fees billed for "secretarial work," as well as travel time); Kochisarli, 2008 WL 1882662, at *9 (excluding all time spent on "secretarial duties" as "noncompensable"); Jennette v. City of New York, 800 F.Supp. 1165, 1170 (S.D.N.Y.1992) (disallowing compensation for ministerial time because "this time does not properly belong in the category of legal work for which a premium rate may be sought ... and ... is normally subsumed within an attorney's overhead" (internal quotation marks and alterations omitted)).
The fee applicant "bears the burden of ... documenting the appropriate hours expended." Hensley, 461 U.S. at 437, 103 S.Ct. 1933. Thus, fee award applications must be documented with "contemporaneous time records ... [that] specify, for each attorney, the date, the
In Hanski's initial declaration, he seeks compensation for a total 134.5 hours of attorney time, 7.5 hours of travel time,
As mentioned above, Hanski will not be compensated for ministerial activities. Thus, the 5.3 hours from his initial declaration, and the 0.4 hours from his supplemental declaration, will be excluded from the fee award. In addition, entry # 104 from Hanski's initial declaration — 1.5 hours for "pick up transcript for 1-05-12 hearing (reporter leaving on holiday and req'd check)" (capitalization omitted) — and entry # 5 from Hanski's supplemental declaration — 0.9 hours for "prepared motion for filing and ECF file motion with exhibits" — similarly should have been classified as ministerial time, and are hereby excluded. Accordingly, a total of 8.1 hours are excluded from Hanski's fee award as noncompensable ministerial time.
Finally, Hanski seeks compensation for a total of 150.3 hours of attorney time (134.5 hours in his initial declaration and 15.8 hours in his supplemental declaration). I have already ruled above that 0.9 hours in Hanski's supplemental declaration (entry # 5) was inappropriately classified as attorney time, when in fact it was ministerial time, so I will exclude that time from Hanski's fee award. This leaves 149.4 claimed hours of attorney time. Although Kimso objects that "Hanski submits 16 pages of billing records in a case that did not raise any complex issues and was settled in the early stages," Kimso Opp. at 2, I have already reduced Hanski's hourly rate to account for his relative inexperience in this type of litigation, so I need not similarly reduce his claimed hours on this ground.
However, Kimso is correct to point out that certain tasks included in Hanski's billing records equally benefited each of his three clients suing Kimso for disability discrimination — Davis, Nimely, and Hugee. Accordingly, the time spent on these tasks should be allocated equally across each of the three cases. In other words, the hours on such shared-benefit tasks billed to Hugee's matter specifically should be reduced by 1/3. The first such shared-benefit task was the time Hanski spent researching the complaint's causes of action — because the three complaints filed against Kimso asserted identical causes of action, the time Hanski spent researching and drafting the legal bases of Hugee's complaint should be reduced by 1/3. Similarly, the time Hanski spent investigating Kimso's building structure or compliance with disability laws accrued to the benefit of each of his three clients, and thus should be reduced by 1/3. Finally, the time Hanski spent preparing for the January 5, 2012, hearing should be allocated equally across each of the three clients' cases. The hearing was held to address factual disputes arising in all three of the cases. The court ordered all three plaintiffs to appear and testify, as well as all other persons who were involved in the drafting or presenting to the plaintiffs of documents purporting to terminate the lawsuits and/or fire Hanski. In the end, the only plaintiff who testified at the January 5 hearing was Nimely. However, according to Hanski, up until the morning of the hearing he believed that Hugee would also attend and testify.
Hanski asserts summarily in his declaration that the attorney time he purports to bill on the Hugee case is "already reduced for time expended that can be allocated to the two other cases involving this defendant," such as "legal research for some causes of action, and related complaint drafting," and thus "[t]ime spent on those items has been reduced to 1/3rd of the total hours for the particular items." Hanski Dec. ¶ 28. However, Hanski's billing records do not reflect which entries have been reduced in this way, nor do they indicate what the original time investment was prior to such a reduction. The burden is on the party claiming fees to supply adequate documentation; if the documentation is inadequate, the court may reduce the award accordingly. See Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933.
I find that Hanski's documentation of his method of allocating his time across these three related cases is inadequate to discern whether he has overbilled for tasks on the Hugee matter in particular. Indeed, for many tasks that would clearly be subject to this 1/3 reduction, I cannot fathom that the records Hanski has produced are actually only 1/3 of the real time he invested in the task. For example, on January 1, 2012, alone, Hanski purports to bill 9.3 hours that were spent preparing his direct examination for the January 5, 2012, hearing. How Hanski has already reduced this figure by 1/3 — meaning he actually spent roughly 28 hours on this task in a 24-hour day — is beyond me. Similarly, on January 2, 2012, Hanski purports to bill in the Hugee case alone 14.3 hours that he spent drafting cross-examination questions and conducting other preparation for the upcoming hearing. Once again, I am skeptical that this 14.3-hour figure was arrived at by Hanski's working 42.9 hours in a single day and then dividing it by 3. Accordingly, I conclude that despite Hanski's assurances, he has not properly allocated across the three related cases the time he spent on tasks that promoted each of the cases, especially the time spent researching and preparing the complaints and the time spent preparing for the January 5, 2012, hearing. I therefore will reduce all such entries by 1/3 to reflect his economies of scale in suing Kimso three times.
Accordingly, 83.4 total hours of attorney time claimed by Hanski will be compensated in full (68.5 hours from the initial declaration and 14.9 hours from the supplemental declaration).
Reasonable out-of-pocket expenses are generally reimbursed as a matter of right in connection with an award of attorneys' fees. U.S. Football League v. Nat'l Football League, 887 F.2d 408, 416 (2d Cir.1989). Hanski seeks reimbursement of $1,200 of costs, largely comprised of filing fees, transcript costs, and taxi fares. See Hanski Costs Record, ECF No. 30-3. Kimso objects to this request on the
I find all of the costs enumerated by Hanski totaling $1,200 to be reasonable and appropriately compensable.
In sum, Hugee is a prevailing party under New York City's Human Rights Law, and is entitled to a reasonable fee award. I award a total fee to Hugee of $22,880, which is comprised of $21,080 for attorney hours, $600 for travel time and $1,200 for costs.
While this award is large for a litigation that seemingly barely got off the ground, the size of the fee is directly traceable to Kimso's — and, in particular, Shah's — reprehensible conduct with respect to this lawsuit. On Kimso's behalf, Shah drafted a series of false documents and used Hugee's sister to induce Hugee to sign them without understanding them or consulting with her attorney. After settling the lawsuit for $500 cash in Hanski's absence, Kimso thereafter refused to modify the settlement to stipulate to pay a "reasonable fee award to be determined by the court," as the court repeatedly recommended that the parties do. Instead, Kimso has fiercely litigated every aspect of the settlement and fee award in a way that is directly counter to its aim of avoiding paying damages or attorney fees altogether. Kimso's outrageous conduct in this case is directly responsible for the court's extensive intervention in what is otherwise a garden-variety housing discrimination case. Accordingly, I have carefully reviewed all of Hanski's billing records and conclude that the fee here awarded is reasonable and appropriate, and "sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case," even against an adversary like Kimso. Perdue, 130 S.Ct. at 1672.
So ordered.
In the Southern District of New York, there are 15 lawsuits filed by Hanski: Nimely v. SC Water View LLC et al., No. 1:11-cv-05535-PAC (S.D.N.Y.) (filed 08/09/11); Nimely v. Whitehall Properties, LLC et al., No. 1:11-cv-05536-RMB-MHD (S.D.N.Y.) (filed 08/09/11; closed 03/12/12); Nimely v. 55 Broad Street L.P. et al., No. 1:11-cv-05809-CM (S.D.N.Y.) (filed 08/19/11; closed 11/07/11); Nimely v. 130 Water (N.Y.) L.L.C. et al., No. 1:11-cv-05811-DLC (S.D.N.Y.) (filed 08/19/11; closed 02/08/12); De La Rosa v. 415 Second Owner's Corp. et al., No. 1: 11-cv-07661-DLC (S.D.N.Y.) (filed 10/28/11; closed 02/10/12); De La Rosa v. Dream Team Associates, LLC et al., No. 1:11-cv-07851-AJN-FM (S.D.N.Y.) (filed 11/03/11); De La Rosa v. Dream Team Associates, LLC et al., No. 1:11-cv-07853-DCF (S.D.N.Y.) (filed 11/03/11); De La Rosa v. Gristede's Foods Inc., No. 1:11-cv-08197-HBP (S.D.N.Y.) (filed 11/14/11); Nimely v. 112 Fulton Street LLC et al., No. 1:11-cv-09031-PAC (S.D.N.Y.) (filed 12/09/11); Nimely v. 201 Pearl Street L.L.C. et al., No. 1:11-cv-09032-PGG (S.D.N.Y.) (filed 12/09/11); De La Rosa v. Est Midtown Plaza Housing Company, Inc. et al., No. 1:11-cv-09190-ALC-AJP (S.D.N.Y.) (filed 12/15/11; closed 02/29/12); Nimely v. Leviev Fulton Club, LLC et al., No. 1:12-cv-01626-DAB (S.D.N.Y.) (filed 03/06/12); Nimely v. Mazal Group et al., No. 1:12-cv-01627-NRB (S.D.N.Y.) (filed 03/06/12); Nimely v. 150 William Street Associates L.P. et al., 1:12-cv-01628-GBD (S.D.N.Y.) (filed 03/06/12); Nimely v. Liberty Street Realty LLC et al., No. 1:12-cv-01629-NRB (S.D.N.Y.) (filed 03/06/12).
