KATHERINE POLK FAILLA, District Judge:
Plaintiff Ingrid Echevarria accused her former employer, as well as its owner and manager, of subjecting her to sexual harassment at her workplace and terminating her employment when she complained about the harassment. On June 30, 2014, after a four-day trial, a jury found that Plaintiff had proven her retaliation claims under federal and New York City law, and awarded her $50,000 in compensatory damages. (Dkt. # 54). On December 22, 2014, the Court denied Defendants' post-trial motions for judgment as a matter of law or a new trial. (Dkt. # 89). Echevarria v. Insight Medical, P.C., 72 F.Supp.3d 442, 2014 WL 7250956 (S.D.N.Y. Dec. 22, 2014).
On January 6, 2015, the parties filed a joint letter proposing a briefing schedule for Plaintiff's motion for attorneys' fees and costs (Dkt. # 90); the Court so-ordered the schedule the following day (Dkt. # 91). Plaintiff filed her motion on January 23, 2015 (Dkt. # 93-95); Defendants filed their opposition papers on February 6, 2015 (Dkt. # 96); and the briefing was completed with the filing of Plaintiff's reply brief on February 13, 2015 (Dkt. # 97).
Plaintiff seeks attorneys' fees in the amount of $95,643.25 and costs in the amount of $1,845.04. Defendants ask the Court to reduce the fee figure by 50%, challenging the reasonableness of both counsel's rates and the hours billed. For the reasons set forth in the remainder of this Opinion, the Court awards Plaintiff attorneys' fees and costs in the amount of $82,970.04.
Defendants concede that Plaintiff is a "prevailing party" in the instant litigation. (See Def. Fee Opp. 1). Both Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (the "NYCHRL") authorize the award of attorneys' fees to prevailing parties. See 42 U.S.C. § 2000e-5(k) (allowing "a reasonable attorney's fee (including expert fees)" to prevailing parties under Title VII); N.Y.C. Admin. Code § 8-502 ("In any civil action commenced pursuant to this section, the court, in its discretion, may award the prevailing party costs and reasonable attorney's fees."). A district court has discretion to determine the amount of attorneys' fees that would be appropriate to satisfy a fee award. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see also Fed.R.Civ.P. 54(d).
In reviewing a fee application, a district court must examine the particular hours expended by counsel with a view to the value of the work product to the client's case. See Lunday v. City of Albany, 42 F.3d 131, 133 (2d Cir.1994) (per curiam). The court is to exclude "excessive, redundant or otherwise unnecessary hours, as well as hours dedicated to severable unsuccessful claims." Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999). A party seeking attorneys' fees bears the burden of supporting its claim of hours expended by accurate, detailed, and contemporaneous time records. N.Y.S. Ass'n for Retarded Children, Inc. v. Carey ("Carey"), 711 F.2d 1136, 1147-48 (2d Cir. 1983).
A reasonable hourly rate represents what "a reasonable, paying client would be willing to pay," and varies by both practice area and location. Arbor Hill, 522 F.3d at 184, 192; see also Perdue, 559 U.S. at 552, 130 S.Ct. 1662 ("a `reasonable' fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case").
Arbor Hill, 522 F.3d at 184.
Plaintiff seeks attorneys' fees in the amount of $95,643.25, and costs in the
According to the Declaration submitted by Jesse Rose, the attorney with principal responsibility for this case, the attorneys' fees figure reflects the work undertaken by three attorneys: Rose, Edward Kennedy, and Thomas Kocian. (Rose Decl. ¶¶ 1-27). Rose — whose billings represent the lion's share of the fee figure — provides considerable information concerning his own qualifications. (Id. at ¶¶ 2-14). He is a 2008 graduate of Hofstra Law School, with extensive experience in employment law that is evidenced both in his law school endeavors (including work on the Hofstra Labor & Employment Law Journal and an employment trial competition) and in his professional life (including stints at several law firms specializing in labor and employment law). Rose is currently principal of his own law firm, which specializes in labor and employment law matters, and is as well Of Counsel to the law firm of Phillips & Associates, which has a similar focus. (Id. at ¶¶ 2-4, 9-11). Rose has worked on literally hundreds of employment actions, frequently with no supervision and/or no assistance. (Id. at ¶ 13).
Much less information is provided to the Court about the other two attorneys seeking fees for their representation of Plaintiff. Rose recites that Edward Kennedy is "known to [him] to be [a] very proficient and talented attorney[]" (Rose Decl. ¶ 23), who has "litigated numerous cases as lead counsel and tried several cases" (id.), and who is "a highly respected litigator with extensive experience" (id. at ¶ 26). Significantly, however, Rose provides no detail about Kennedy's educational or experiential background to justify the $425 hourly rate Kennedy seeks.
"A reasonable starting point for determining the hourly rate for purposes of a lodestar calculation is the attorney's customary rate." Parrish v. Sollecito, 280 F.Supp.2d 145, 169-70 (S.D.N.Y.2003) (collecting cases). Rose avers that the hourly rates for him, Kennedy, and Kocian are $425, $425, and $350, respectively. (Rose Decl. ¶¶ 25-27). However, he provides no supporting documentation, such as sample fee agreements or affidavits from former clients. To the contrary, Rose asserts that over 90% of his clients retain him on a contingency basis. (Id. at ¶ 14).
Each side has cited a number of district court cases to support, or refute, the reasonableness of the rates sought by Plaintiff's counsel. (Compare Pl. Fee Br. 7-12, with Def. Fee Opp. 4-8). The Court has undertaken its own analysis, and concludes that, broadly speaking, the fees sought by Rose are comparable to what other courts in this District have awarded to attorneys in analogous civil rights cases. See, e.g., Abdell v. City of New York, No. 05 Civ. 8453(RJS), 2015 WL 898974, at *3 (S.D.N.Y. Mar. 2, 2015) (awarding fees to attorneys for prevailing plaintiffs in civil rights action ranging from $100 to $650, where action persisted for nearly five years); Charles v. City of New York, No. 13 Civ. 3547(PAE), 2014 WL 4384155, at *3-4 (S.D.N.Y. Sept. 4, 2014) (awarding $450 hourly rate in civil rights action to attorney with 24 years of experience); Spencer v. City of New York, No. 06 Civ. 2852(KMW), 2013 WL 6008240, at *45 (S.D.N.Y. Nov. 13, 2013) (awarding $400 hourly rate in civil rights action to attorneys with 10 and 20 years of experience, respectively, finding rate to be "in line with the hourly rates set for attorneys with similar experience and backgrounds in this forum" (collecting cases)); Greene v. City of New York, No. 12 Civ. 6427(SAS), 2013 WL 5797121, at *4 (S.D.N.Y. Oct. 25, 2013) (observing that "precedent in the Southern District reveals that rates awarded to experienced civil rights attorneys [in the 10 years prior to a 2008 survey] have ranged from $250 to $600"; concluding that "the rate of $375 per hour is on par with rates charged by seasoned civil rights solo practitioners with comparable experience," for attorney with nearly 20 years of experience); Tatum v. City of New York, No. 06 Civ. 4290(PGG), 2010 WL 334975, at *5 (S.D.N.Y. Jan. 28, 2010) (awarding fees at hourly rates of $400 and $450 for attorneys with 10 and 23 years of experience, respectively; finding that "consistent precedent in the Southern District reveals that rates awarded to experienced civil rights attorneys over the past ten years have ranged from $250 to $600, and that rates for associates have ranged from $200 to $350, with average awards increasing over time" (quotation marks and citation omitted)); see also Townsend, 679 F.3d at 59 (affirming district court award of $350 hourly rate for attorney at small firm engaging in civil rights litigation in 2006).
There remains the issue of the rates for attorneys Kennedy and Kocian. Put simply, the Court has been provided with insufficient information to substantiate the rates sought by either. Though Kennedy has one-third of the experience of Kocian, he seeks a billing rate that is substantially higher, with scant if any justification.
The next step in the Court's analysis is to determine whether the hours expended by Plaintiff's counsel were reasonable. In support of her fee application, Plaintiff has submitted a summary of time records that "specify, for each attorney, the date, the hours expended, and the nature of the work done." Carey, 711 F.2d at 1148. According to these records, Rose billed 209 hours on this litigation, Kennedy billed 8 hours, and Kocian billed 4 hours.
Defendants raise a variety of challenges to the number of hours billed by Rose.
Next, Defendants seek an across-the-board reduction based on what they consider to be the prevalence of "excessive time entries" throughout the fee invoice (Def. Fee Opp. 8); relatedly, Defendants suggest that certain entries are "duplicative" and "vague" (id. at 9-10). The Court largely disagrees. To be sure,
The Second Circuit has also recognized the authority of district courts "to make across-the-board percentage cuts in hours `as a practical means of trimming fat from a fee application.'" In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir.1987) (quoting Carey, 711 F.2d at 1146). Having reviewed the fee submission at length, the Court finds little fat that can be trimmed. The Court has identified no duplicative billing by the three attorneys; Rose, true to his affirmation, "worked primarily without assistance and performed [the] vast majority of the legal work in the case." (Rose Decl. ¶ 13). There is as well no evidence of "churning" of the case to enhance Rose's fee; to the contrary, the Court finds that Rose used his hours efficiently, and that much was accomplished in approximately 200 hours of work. The Court is further advised that Plaintiff's counsel did not charge for any paralegal services provided (Pl. Fee Br. 12), and that "much" of the work of scheduling and information-gathering was performed by non-attorneys and "not submitted as billable time" (Pl. Fee Reply 5). The Court has reviewed the time records; it agrees with Plaintiff's counsel that work that could most efficiently be performed by non-attorneys was so performed, and was not submitted for reimbursement here.
Defendants next mount challenges to specific entries. First, they contest entries reflecting the sending and reviewing of emails; Defendants claim that these emails are either non-substantive or unrelated to the merits of the case. (Def. Fee Opp. 9). The Court has reviewed the challenged entries, which primarily involve communications with defense counsel; to the extent the subject matter of the communications was not substantive, the Court largely agrees with Plaintiff that emails were more efficient (and thus less expensive) than the preparation and mailing of letters. (Pl. Fee Reply 5). In an abundance of caution, and because of the Court's desire for additional substantiation of the entries for November 5, 2013, November 18, 2013, December 3, 2013, and June 16, 2014, the Court will reduce Rose's hours billed for sending and receiving emails by one-half of an hour.
The Court disagrees with Defendants' contention that certain entries reflect duplicative or excessive work by Rose. (Def. Fee Opp. 10-11). Rather, they reflect the amount of time that it took to prepare quality work product — be that pleadings, outlines for questioning of witnesses, effective addresses to the jury, or appropriately detailed written submissions to the Court. After all, in just over 200 hours, Plaintiff's counsel took in the case, prepared the
Plaintiff responds by comparing the (greater) number of hours billed by adversary counsel for trial. (Pl. Fee Reply 6-7). That is one metric of comparison, but the Court offers another: The Court spent considerably more time preparing for trial, and resolving the post-trial motions, than either side has claimed. It cannot therefore find that Plaintiff's counsel's submitted time charges for the trial or the post-trial proceedings are excessive.
Finally, Defendants contest certain time entries dealing with research on retaliation, which entries they claim are "not only improper but frivolous" (Def. Fee Opp. 11), because they purportedly relate to "third party claims for retaliation" (id.). While including an exhibit of a medical bill received by a third party, Defendants fail to note that the third party was in fact Plaintiff's son. The Court accepts Plaintiff's explanation that research and communications were necessitated by Defendants' conduct in causing collection agencies to send direct mailings to Plaintiff to obtain reimbursement of her son's medical expenses. (Pl. Fee Reply 6). While Plaintiff's description of events suggests an attenuated connection to the conduct that precipitated this litigation, the fact that the Complaint was almost amended to include these acts as retaliatory conduct confirms to the Court's satisfaction that the fees are properly reimbursed.
In sum, Plaintiff's attorneys were judicious in the time they expended; the gratis assistance provided by non-lawyers, as well as the strict division of labor among counsel, bear out this fact. The Court also notes that the submissions and presentations of Plaintiff's counsel were of a consistently high quality; Plaintiff's counsel was on the winning side of the majority of motions decided by the Court; and Plaintiff achieved success (though not complete success) at trial. On this basis, the Court finds that the hours expended Plaintiff's counsel in connection with this matter were reasonable, with the minimal reductions outlined in this section.
Plaintiff claims reimbursable costs in the amount of $1,845.04. (Pl. Fee Br. 13; Pl. Fee Reply 8). Defendants seek substantiation of the costs claimed by Plaintiff. (Def. Fee Opp. 12). Rose provided a list of the expenses in Exhibit B to his declaration, and Plaintiff provided backup for those expenses in Exhibit D to her Reply Brief. While it might have been preferable to submit the backup documentation earlier, the Court finds that the costs of $1,845.04 have been adequately supported.
Plaintiff is entitled to attorneys' fees and costs in the amount of $82,970.04. In reaching this figure, the Court applied the lodestar method as follows:
Timekeeper Rate Hours Reasonable Fee Jesse Rose $375 208.5 $ 78,187.50 Edward Kennedy $250 7.75 $1,937.50 Thomas Kocian $250 4 $1,000.00 Lodestar Total: $81,125.00 Costs: $1,845.04 TOTAL AMOUNT: $82,970.04
For the reasons set forth herein, it is hereby ORDERED that Plaintiff is awarded attorneys' fees and costs in the amount of $82,970.04.
SO ORDERED.
The consequent demise of Arbor Hill may, however, be more apparent than real. The Perdue Court focused on enhancements to an attorneys' fees award applied by the district court. Moreover, the Arbor Hill decision, at its core, simply instructs district courts to take the Johnson factors (and other factors) into account when determining the reasonable hourly rate, and then to use that reasonable hourly rate to calculate the presumptively reasonable fee. 522 F.3d at 190. As another court in this District has recognized, "[t]his approach, though it uses different terminology, is not at odds with the Supreme Court's reasoning in Perdue because like the lodestar, it takes into account all the `relevant factors' in setting a reasonable rate, and then uses that rate to determine the reasonable fee award." G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 894 F.Supp.2d 415, 427 n. 11 (S.D.N.Y.2012); cf. Arbor Hill, 522 F.3d at 189 ("What the district courts in this circuit produce is in effect not a lodestar as originally conceived, but rather a `presumptively reasonable fee.' The focus of the district courts is no longer on calculating a reasonable fee, but rather on setting a reasonable hourly rate, taking account of all case-specific variables." (internal citation omitted)).
Perhaps more importantly, Arbor Hill has yet to be overruled by the Second Circuit. To the contrary, in Millea v. Metro-North R.R. Co., 658 F.3d 154 (2d Cir.2011), the Court relied on both Arbor Hill and Perdue in instructing that "the lodestar — the product of a reasonable hourly rate and the reasonable number of hours required by the case — creates a `presumptively reasonable fee,'" and that failure to "calculate it as a starting point is legal error." Id. at 166 (quoting Arbor Hill, 522 F.3d at 183); accord J.S. ex rel. Z.S. v. Carmel Cent. Sch. Dist., 501 Fed.Appx. 95, 98-99 (2d Cir.2012) (summary order); see also Torres v. Gristede's Operating Corp., 519 Fed.Appx. 1, 3-4 (2d Cir.2013) (summary order) (continuing to apply Johnson factors in reviewing district court's determination of reasonable hourly rate). Therefore, regardless of the terminology used, this Court has considered Arbor Hill and Perdue in resolving the instant motion.
