ANNE Y. SHIELDS, Magistrate Judge.
This action was brought by two community-based organizations to challenge the constitutionality of an ordinance passed by the Defendant, Town of Oyster Bay (the "Town" or "Oyster Bay"). The ordinance at issue (the "Ordinance") sought to restrict day laborers from soliciting work on the streets of Oyster Bay. Plaintiffs attempted to negotiate a settlement with the Town before the case was commenced in 2010. When that attempt failed, this action was commenced. Plaintiff prevailed at the preliminary injunction phase and Defendant appealed. The Court of Appeals for the Second Circuit declined to vacate that injunction, but found that factual issues precluded a decision as to the constitutional issues raised. Approximately eight years of litigation later, including extensive discovery and dispositive motion practice, as well a further appeal to the Second Circuit, Plaintiffs have ultimately prevailed. In particular, the District Court held (and the Second Circuit agreed) that the Ordinance constituted an unlawful restriction of commercial speech in violation of the First Amendment.
Presently before this Court, on referral from the Honorable Denis R. Hurley for Report and Recommendation, is Plaintiffs' motion for attorney's fees and costs, pursuant to 42 U.S.C. § 1988. In an application that already reflects a reduced fee based upon their exercise of billing judgment, Plaintiffs seek $1,482,248.00 in attorney's fees, and $26,080.00 in costs for more than 3,500 hours spent over the course of this hard-fought litigation. Defendants oppose Plaintiffs' motion on the grounds that the time spent by Plaintiffs' counsel was excessive, billing entries are vague and duplicative, and the hourly rates requested are more than permitted in the Eastern District of New York. While Plaintiffs' current fee application reflects voluntary exercises of billing judgment, reducing the amount sought from the hours actually spent, Defendants seek an across-the-board reduction of fifty percent of Plaintiffs' fee application. For the following reasons, this Court respectfully recommends that Plaintiffs' motion be granted in part and denied in part, such that Plaintiffs be awarded the full amount of attorney's fees requested but that their costs be reduced, as set forth herein.
Familiarity with the precise facts and procedural background of the underlying action is presumed. Briefly summarized, this is a civil rights case brought pursuant to 42 U.S.C. § 1983 challenging the constitutionality of a law aimed at restricting the ability of day laborers to solicit work on public streets. (Compl., DE [1], ¶ 1.) The case was commenced by two organizational plaintiffs: (1) Centro De la Comunidad Hispana de Locust Valley ("Centro"), a membership organization of day laborers and their families and (2) The Workplace Project (the "Project"), a group that includes Latino immigrant workers who live in Nassau County and the Town of Oyster Bay (collectively "Plaintiffs"). Representing day laborers, Plaintiffs sought injunctive relief prohibiting enforcement of the Ordinance. (Compl. ¶¶ 30-31.) In particular, it was alleged that the Ordinance interfered with constitutionally protected speech related to employment and was enacted specifically "in response to and as a result of discriminatory community animus" toward day laborers. (
Upon the 2010 commencement of the case, Plaintiffs sought, and were granted, immediate temporary injunctive relief. (DE [3].) On June 1, 2010, upon consent of the parties, the Court converted the temporary relief into a preliminary injunction (the "PI"). (Order Granting Preliminary Injunction of Hurley, J., dated June 1, 2010, DE [19].) Defendants appealed the PI to the Court of Appeals for the Second Circuit. In an effort to avoid a waste of resources, Plaintiffs sought, and were granted, a stay of discovery pending a decision by the appellate court. (DE [22]; Order of Lindsay, M.J., dated June 14, 2010.) The Second Circuit affirmed the District Court's entry of the PI, but retained jurisdiction to reconsider that order after any discovery the parties chose to take. (DE [33].) While the appellate court did not reach the merits of the dispute, it nonetheless left the preliminary injunctive relief in place. (
On September 29, 2011, Plaintiffs filed an Amended Complaint, alleging that the Ordinance and enforcement thereof violated the First Amendment as well as the Equal Protection and Due Process Clauses of the Constitution. (
Discovery and related motion practice continued after the District Court's June 2013 decision, including a litigated motion to quash twenty-four third-party subpoenas. This motion required briefing and consideration of whether the privacy rights alleged conferred standing sufficient to challenge the subpoenas at issue. (DE [98-107].) In 2014, pretrial discovery litigation continued, with counsel litigating extensions of discovery and the permissibility of witness testimony. (DE [112], [115], [117].)
In 2014, after the close of discovery, Plaintiffs took the first step in moving for summary judgment. (DE [123-131].) By Memorandum and Order dated September 3, 2015, Judge Hurley granted summary judgment to Plaintiffs, holding that the Ordinance (which prohibited individuals from congregating on public roadways and soliciting the operators of motor vehicles for employment), violated Plaintiffs' First Amendment rights. (Mem. and Order of Hurley, J., dated Sept. 3, 2015, DE [138].) In so holding, Judge Hurley urged the parties to seek a "safe, constitutionally valid solution" to address Defendant's concerns. (
As noted, Plaintiffs seeks a total of $1,482,248.00 in attorney's fees, and $26,080.00 in costs for more than 3,500 hours spent over the course of this eight-year litigation. The Court notes that, as prevailing parties, Plaintiffs are entitled to seek recovery of fees representing hours worked during the litigation, as well as hours expended in connection with the preparation of this fee application, including reply papers.
42 U.S.C. § 1988 ("Section 1988") grants a court the discretion to allow a prevailing party a "reasonable attorney's fee" as part of the costs incurred in a civil action. 42 U.S.C. § 1988(b). There is no question that Plaintiffs are prevailing parties within the meaning of Section 1988 and are thus entitled to a reasonable award. The only issue before the Court is the amount of attorney's fees and costs to be awarded.
To determine a "reasonable" fee, a court must arrive at a reasonable hourly rate, which is then multiplied by the reasonable number of hours worked. This is sometimes referred to as the "lodestar" amount.
The District Court has broad discretion when awarding a reasonable fee.
When reviewing fee applications, a court relies on its familiarity with the case, "as well as on its experience with the parties' evidentiary submissions and arguments."
Broadly speaking, when considering what is "reasonable," courts consider "the rate a paying client would be willing to pay," bearing in mind that "a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively."
Generally, the "forum rule" requires the court to use "the hourly rates employed in the district in which the reviewing court sits."
Many courts rely on an undisputed "forum rate" set forth by counsel to support a fee award. When such hourly rates are proposed without quarrel, those rates are usually held to be reasonable, without discussion. However, what may often be cited as the "forum rate" does not necessarily dictate the rate in all cases brought in a particular district. Deciding the proper hourly rate (even assuming that rate is the "in district" rate) is not a "one size fits all" determination. Instead, as the
A review of cases decided in the neighboring Eastern and Southern Districts of New York reveals that there is no real bright line between a reasonable Eastern District rate, and an equally reasonable Southern District rate. Indeed, judges in this District have long lamented the "artificiality" of a "rigid forum-based rule in the context of the Eastern District of New York and the Southern District of New York because they form a unitary market for legal services."
Given the geographic proximity and overall quality of the bar, it is not surprising that there is substantial overlap between what courts consider to be the hourly "market rate" in the Southern and Eastern Districts of New York. To demonstrate, in
This range is similar to fees recently awarded in a variety of cases litigated in the Eastern District of New York.
In accord with
Moreover, an hourly fee awarded in the past need not be "frozen in time" as to require the same rate to apply over a period of several years.
Importantly, the complexity of a matter will support an award at the high end of the district spectrum, whether that case is litigated in the Southern or Eastern Districts of New York.
As the discussion above makes clear, courts in the Eastern and Southern Districts of New York hold a broad range of rates to be reasonable. While a review of cases reveals a somewhat lower rate structure is more commonly applied in the Eastern District of New York, the Eastern and Southern districts find common ground in determining hourly rates not only on the so-called (and admittedly broad) in-district rate, but also, in accord with
Like the hourly rate, the burden of establishing the reasonableness of the number of hours expended lies with the moving party.
Where hours are not properly documented, the court may reduce the fee "accordingly."
In addition to overstaffing, fee applications are often attacked on the ground that attorney time records reveal impermissible "block billing,"
While Courts must make case-specific findings as to fee awards, across-the-board percentage reductions may be applied, and are routinely upheld as reasonable. Such reductions have long been recognized as a "practical means of trimming fat from a fee application."
With these standards in mind, the Court turns to review the present fee application.
Plaintiffs have submitted a highly detailed request for fees, including well-supported requests as to hourly rates. The rates requested vary depending upon the experience of the attorney performing the work. Here, the Plaintiff organizations were represented by two separate entities. Seven attorneys are identified as having worked, at one time or another, for LatinoJustice PRLDEF ("LatinoJustice"). Four worked for the New York Civil Liberties Union (the "NYCLU").
The LatinoJustice team included attorneys Alan Levine ("Levine"), Jackson Chin ("Chin"), Elizabeth Joynes ("Joynes"), Laura Huizar ("Huizar"), Bianca Scott ("Scott"), Kyle Valenti ("Valenti"), and Alba Villa ("Villa"). Attorney Levine, a 1962 law school graduate with extensive experience litigating civil rights cases, seeks an hourly fee of $600. Attorney Chin, also a highly experienced civil rights litigator, who graduated law school in 1984, seeks an hourly rate of $475. Joynes, a 2010 graduate, seeks an hourly rate of $350. Attorney Huizar seeks to have her hours calculated at the rate of $300. Any hours incurred by Huizar prior to her law school graduation are accounted for at an hourly rate of $150. Similarly, hourly rates for more recent law graduates Valenti and Villa are calculated at the hourly rate of $150.
Plaintiffs support their hourly fee structure with documents showing the experience of each attorney and, where applicable, the hourly rates these attorneys have been awarded in prior litigation. For ease of reference the Court annexes hereto Appendix A, a table listing each attorney for whom fees are sought, the year in which they graduated law school, the hourly rates sought herein and, if submitted and therefore before this Court, hourly rates awarded to these attorneys in other litigations. The
There were four NYCLU attorneys who worked on this case. Attorney Arthur Eisenberg ("Eisenberg"), a 1968 law graduate with extensive civil rights litigation experience, seeks the same hourly rate as the senior attorney at LatinoJustice. Thus, he seeks to have his fee calculated at the hourly rate of $600. (Declaration of Arthur Eisenberg ("Eisenberg Decl."), DE [162-4].) Corey Stoughton ("Stoughton"), a similarly experienced litigator who graduated law school in 2002, seeks to have her hours calculated at the hourly rate of $400. (
Plaintiffs have produced highly detailed contemporaneous time records supporting the hours they worked and describing the type of work performed. As to the NYCLU, Plaintiffs have submitted the contemporaneous time records of Stoughton, Hirose and Wells, as entered into a computer program for recording billable time. Eisenberg recorded his time in a daily written diary that was than transposed by a staff assistant into the same computer application. (Eisenberg Decl. ¶ 14.) Each time entry submitted by the NYCLU attorneys reflects the date, tasks performed, and the amount of time spent on each task. (Eisenberg Decl., Exhs. E-H.) In addition to requesting hourly fees, the NYCLU seeks reimbursement of expenses in the amount of $485. Records regarding those expenses are annexed as Exhibit I to Eisenberg's Declaration. The records submitted by LatinoJustice similarly reflect the date of tasks, as well as a description of each, and the time spent. (Chin Decl., Exhs. 2-5.)
As noted above and revealed by their submission, Plaintiffs do not seek the full lodestar amount,
NYCLU attorneys spent substantially less time on this litigation, as reflected in their billing records. The NYCLU total lodestar fee is $234,700. Like LatinoJustice, NYCLU has exercised its billing judgment. Thus, its application applies a voluntary 10% across-the-board reduction. It also seeks no compensation for the assistance of paralegals or law students. (Eisenberg Decl. ¶ 15.) Nor has the NYCLU included hours spent on preparation of the fee application. (
In sum, the total amount sought by Plaintiffs, taking into account their voluntary writeoffs of junior attorneys, law students and paralegal assistance, as well as an across-the-board 10% reduction, compared to their lodestar calculations is as follows:
To establish the propriety of the hourly rates sought (which range from $150 to $600), Plaintiffs analogize the positions held by their public interest lawyers to attorneys working at large litigation firms. Thus, it is argued, and the Court agrees, that if they held private sector positions, attorneys Levine, Chin, Eisenberg and Friedman (whose hourly rate requests range from $475 to $600) would be senior litigation partners. Attorneys Stoughton, Hirose, Joynes and Huizar (whose hourly rate requests range from $300 to $400), would either be junior partners or senior associates. Attorneys Valenti, Villa and Wells would be junior associates. While no fees are sought for the work of Valenti or Villa, Plaintiffs seek to have Wells' time calculated at an hourly rate of $300. When analogized to private sector attorneys with similar experience, all of the hourly rates are reasonable. Indeed, when viewed through the billing lenses of private sector litigation firms, the fees requested are reasonable and, indeed, compared with many large firms, are no doubt modest.
The fact that the fees sought are less than those charged by large litigation firms does not mean that Plaintiffs are entitled to the rate requested. Instead, the Court must determine whether the rates are reasonable in the context of this particular fee-shifting litigation. As the cases discussed above indicate, Defendant cannot reasonably attack the vast majority of the hourly rates sought — between $150 and $475. Those rates are well within Eastern and Southern District case law going back as far as 2014. Indeed, in light of the experience of Plaintiffs' attorneys, those rates fall squarely in the middle ground of fees awarded in both the Southern and Eastern Districts of New York. This Court therefore holds that the hourly rates for attorneys Chin, Stoughton, Hirose, Joynes and Huizar are undoubtedly reasonable 2019 Eastern and Southern District rates.
In likely recognition of this fact, Defendants' argument as to hourly rates is aimed chiefly at the $500 rate sought by attorney Friedman, and the $600 hourly rate sought for attorneys Levine and Eisenberg. Defendant argues that those rates are simply beyond those awarded in the Eastern District of New York, and that Plaintiffs cannot justify their choice to hire attorneys who bill their time at Southern District rates. In response, Plaintiffs argue that the rates are consistent with the high end of awards in this District. They also argue, in the alternative, that the Court should look to the hourly rates awarded in the Southern District of New York. With respect to the latter argument, Plaintiffs argue that this is an exceptional case in which they could not have found competent counsel willing to take on a municipality located within this District. Plaintiffs properly note that there is, as discussed above, a presumption that an "in-district" rate applies to fee applications, and that in exceptional circumstances, an out-of-district rate may apply. An out-of-district rate may be appropriate in the exceptional case where a plaintiff can show 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."
As to the argument that competent counsel could not have been found within the Eastern District bar, the Court disagrees. This Court is certainly familiar with experienced Eastern District civil rights litigators who would be able to (and indeed have) litigated claims similar to the Constitutional claims raised here. Thus, the Court cannot accept the unsupported argument that Plaintiffs "were justified in crossing the East River bridges to obtain the proper counsel." (Pl. Mem. of Law 17.) Nor does the Court agree that it is "difficult to believe that any small office in the Eastern District could have come forward" or that "any larger law office with sufficient personnel would have the inclination to take the case against an important municipal government." (
In any event, this Court need not make a finding as to the necessity of hiring Southern District attorneys, because this Court holds that all of the hourly fees requested, including the $500 rate sought by attorney Friedman and the $600 hourly rate of attorneys Levine and Eisenberg, are appropriate to award in this matter in this forum. The fees of these attorneys are well-supported by their experience and by caselaw focusing on the experience of counsel and the nature of the litigation when deciding to award fees at a higher hourly rate. In short, the attorneys seeking fees at the higher rate of the spectrum, particularly those who seek an hourly award of $600, are leaders in their field whose efforts should be properly compensated.
As noted, Levine is a 1962 graduate of Yale Law School. (Levine Decl., Ex. A.) He has actively litigated civil rights cases, while also teaching law at various law schools, throughout his more than fifty-year career and, in particular, with LatinoJustice since 1997. (Levine Decl. ¶ 24, and Ex. A.) His experience includes arguing cases before the United States Supreme Court, including the only case in which the Supreme Court considered the constitutionality of removing books from a school library because of their controversial points of view. (Levine Decl. ¶ 26.) Of particular relevance to this action, Levine has litigated three other cases against local governments that sought to limit the ability of day laborers to solicit employment within their jurisdictions. (
NYCLU attorney Eisenberg is similarly uniquely qualified, and his submission likewise demonstrates his entitlement to a $600 hourly rate. Eisenberg is a 1968 graduate of Cornell University School of Law. (Eisenberg Decl., Ex. A.) Like Levine, he is an experienced civil rights litigator and law school professor. Eisenberg began his civil rights work as a staff lawyer with the NYCLU in 1971 and has served as its Legal Director since 1989. (Eisenberg Decl. ¶ 11.) He has authored six books and eight articles and essays on various aspects of Constitutional Law, as well as a broad selection of lectures and conference presentations. (Eisenberg Decl., Ex. A.) He has also participated in First Amendment cases before numerous federal courts, including this Court and the Supreme Court of the United States. (
Friedman is also well experienced in his field and is certainly entitled to the $500 hourly fee sought. After graduating Harvard Law School in 1960, Friedman entered private practice for a number of years before becoming a staff attorney for the American Civil Liberties Union. (Friedman Decl. ¶ 6.) He has been a federal litigator for fifty-eight years, arguing more than fifty cases in Courts of Appeal across the country and authoring briefs in numerous Supreme Court cases, while also authoring a number of books and articles on civil rights litigation and lecturing on the subject as well. (
The court is aware that the hourly rates awarded to Levine and Eisenberg are certainly at the high end of the Eastern District spectrum, and recognizes that such an award is properly reserved only for the most experienced litigators in a particular field. The Court holds, however, that the $600 hourly rate for these attorneys is supported by their experience, and the length and complexity of this case.
For the foregoing reasons, the Court holds that the hourly rates requested are within the appropriate range of fees that may be awarded in the Eastern District of New York. The Court therefore recommends that Plaintiffs' attorney's fees be calculated at the rates requested.
In addition to arguing against the hourly rates requested by Plaintiffs' counsel, Defendants argue that the records submitted do not contain the required detail. Defendants characterize the records as "impermissibly vague, often indecipherable, reliant on block billing, and replete with administrative tasks and excessive, duplicative entries." (Def. Mem. of Law in Opp'n, DE [168], 3.) Defendants question not only the number of attorneys who worked on this litigation, but the particular tasks alleged to have been performed by each. In addition to questioning the staffing of the matter by LatinoJustice, Defendants state that it was not necessary for Plaintiffs to enlist the help of two separate civil rights organizations, instead of only one. Finally, Defendants argue that the complexity of the case is overstated by Plaintiffs and that, in truth, this was actually a very simple legal matter.
First, as to the issue of whether it was necessary for two separate civil rights organizations to represent them, the Court holds that Plaintiffs have explained, and properly supported, their decision to be represented by two separate organizations,
As to the sufficiency of the billing records, the Court finds that Plaintiffs' application properly supports the hours spent on the tasks for which compensation is sought. The records submitted properly detail the hours spent and tasks performed by each attorney. For example, Levine's declaration in support of his fee application details his role as lead counsel in this case since its 2010 inception. (Levine Decl. ¶¶ 3-22.) Chin's declaration does the same, beginning with his entrance into the case in 2014, and details with specificity the work performed by Joynes, Huizar, Scott, Valenti and Villa. (Chin Decl. ¶¶ 6-21.) Individual billing records for each of the LatinoJustice attorneys are annexed to Chin's declaration at Exhibits 2-5.
Additionally, this is not a case where an inordinate number of attorneys appeared at depositions and court conferences. Thus, this case is readily distinguishable from those where, for example, multiple attorneys sought to bill their time for attendance at a deposition.
This Court also rejects Defendants' argument that Plaintiffs' fee application should be reduced for block billing. The Second Circuit has described block billing as "the grouping of multiple tasks into a single billing entry."
Additionally, the Court rejects Defendants' arguments that Plaintiffs' attorneys spent an excessive amount of time on particular tasks. As stated above, the hours detailed in Plaintiffs' counsel's billing records are reasonable given the protracted nature of this litigation. Moreover, Defendants attempt to persuade the Court that Plaintiffs' counsel's time was excessive because Defendants' counsel spent less time and billed less to their client. As reflected by this report and recommendation, this Court finds that Plaintiffs' counsel achieved excellent results on behalf of their clients, especially in light of how vigorously this action was fought by Defendants. Accordingly, this Court declines to find that any of the tasks performed by Plaintiffs' counsel "should have" taken less time than the amount billed.
Finally, as to whether the complexity of the litigation justifies the fees sought, Defendants state that this case "established no new principle of law and concerned instead a straightforward application of existing law." (Def. Mem. of Law 3.) This argument rings particularly hollow in a case that was fought tooth and nail for eight years. Moreover, as explained in Plaintiffs' submission, this case addressed difficult issues of standing, commercial speech, due process vagueness, equal protection, equitable relief and damages. (Levine Decl. ¶ 7.) A temporary restraining order and preliminary injunction were obtained, which Plaintiffs then had to defend the issuance of before the Second Circuit when Defendants appealed. (
If Defendants truly believed that this matter was simple, they could have easily taken Judge Hurley's 2015 advice and attempted to work out a "safe, constitutionally valid solution" to address Defendants' concerns as to the alleged impact of the day laborer community. No such solution was reached and the litigation continued for the next several years — with fees continuing to amass on both sides. This Court emphasizes that Defendants were certainly not required to change their legal position, and had the right to litigate this case as they did. They were aware, however, that this is a case where a fee might have been awarded. The decision to continue to litigate was a business decision that Defendants had the right to make. Having made that decision, they cannot now characterize this as a simple matter for which Plaintiffs' counsel over-billed.
Accordingly, this Court finds the hours billed by Plaintiffs' counsel reasonable and recommends that Plaintiffs be awarded the full amount of attorney's fees sought — $1,482,248.00.
Plaintiffs also seek a total of $26,080.00 in costs and disbursements in connection with the instant action. These costs include shipping charges, postage, transcript fees, conference calls, service fees, expert expenses, attorney meals, and various travel-related expenses incurred by the attorneys representing Plaintiffs. Defendants challenge the costs sought for meals and travel but otherwise do not object to Plaintiffs' application for costs. (Def. Mem. of Law in Opp'n 16.)
Reasonable and identifiable out-of-pocket disbursements ordinarily charged to clients are recoverable.
With respect to the costs sought by Plaintiffs, however, several of the categories of expenses are simply not compensable. "An award of costs under Section 1983 is generally limited to `[i]dentifiable, out-of-pocket disbursements for items such as photocopying, travel, and telephone costs . . . and are often distinguished from nonrecoverable routine office overhead, which must normally be absorbed within the attorney's hourly rate.'"
"Generally, meals that are not required by out of town travel are not compensable."
In addition, Plaintiffs seek $1,855.00 in various travel-related and rental car expenses incurred by their attorneys when traveling from their offices in New York City to Long Island. (Chin Decl., Ex. 6; Eisenberg Decl., Ex. I.) While "local transportation" costs may "ordinarily be recovered as part of a fee award,"
Based on the foregoing, this Court recommends that Plaintiffs' request for costs be reduced by $2,522.00 to account for the nonrecoverable categories of travel and meals. Taking into account these deductions, the Court recommends that Plaintiffs be awarded $23,558.00 in costs.
For the foregoing reasons, this Court respectfully recommends that Plaintiffs' motion for attorney's fees and costs, appearing at Docket Entry [162], be granted in part and denied in part. Specifically, the Court recommends that Plaintiffs be awarded $1,482,248.00 in attorney's fees and $23,558.00 in costs, for a total monetary award of $1,505,806.00.
A copy of this Report and Recommendation is being provided to all counsel via ECF. Any written objections to this Report and Recommendation must be filed with the Clerk of the Court within fourteen (14) days of filing of this report. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 72(b). Any requests for an extension of time for filing objections must be directed to the District Judge assigned to this action prior to the expiration of the fourteen (14) day period for filing objections. Failure to file objections within fourteen (14) days will preclude further review of this report and recommendation either by the District Court or Court of Appeals.