Case 1:11-cv-02942-LBS Document 13

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ____________________________________ ANDREW ROSA, GABY DAY, MIRSAD ISUFI, ALLEN RUBIN, PLAINTIFFS vs THE CITY OF NEW YORK, a municipal entity, et al., DEFENDANTS _____________________________________ 11 11 11 11 Civ. Civ. Civ. Civ. 2942 2956 4159 4160 (LBS) (LBS) (LBS) (LBS)

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR ATTORNEYS FEES AND OTHER DISCRETIONARY COSTS PURSUANT TO 42 U.S.C. 1988 AND FED.R.CIV.P. 54(d)

JEFFREY A. ROTHMAN, Esq. 315 Broadway, Suite 200 New York, NY 10007 Tel: 212 - 227 2980 JAMES I. MEYERSON, Esq. 64 Fulton Street @ Suite # 502 New York, New York 10038 Tel.: (212) 226-3310 Attorneys for Plaintiffs

June 7, 2012

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INTRODUCTION Plaintiffs, ANDREW ROSA, GABY DAY, MIRSAD ISUFI, and ALLEN RUBIN, by their attorneys, JEFFREY A. ROTHMAN and JAMES I. MEYERSON, respectfully submit this memorandum of law in support of their Application for Attorneys Fees and Other Discretionary Costs Pursuant To 42 U.S.C. 1988 And Fed.R.Civ.P. 54(d). Plaintiffs application at this time includes all work on this matter to the date of the Rule 68 Offers proffered, and does not include at this time the work on the present fee petition (which will be submitted, accompanied with further time sheets, along with Plaintiffs reply, once the work of the fee petition is completed). See, Declaration of Jeffrey A. Rothman, dated June 7, 2012 (Rothman Decl.) at Exhibit C (Rothman time and expense sheets); Declaration of James I. Meyerson, dated June 4, 2012 (Meyerson Decl.) at Exhibit G (Meyerson time and expense sheets). PRELIMINARY STATEMENT These were four related actions for damages pursuant to 42 U.S.C. 1983, supplemental state law claims, and Monell Claims. The Rosa and Day actions were filed on May 2, 2011, the Isufi and Rubin actions on June 17, 2011. On May 15, 2012, Defendant City of New York issued Offers of Judgment in each of the Rosa, Day, Isufi, and Rubin cases pursuant to Fed.R.Civ.P. 68, to allow Plaintiffs to take judgment against it in these actions for underlying sums of $12,501, $5,001, $7,501, and $7,501, respectively, plus reasonable attorneys fees, expenses, and costs to the date of the offer for plaintiffs federal claims. That Rule 68 Offer was accepted by all of the Plaintiffs on May 16, 2012. A Judgment Pursuant to Rule 68 in Rosa was signed by the Honorable Judge Leonard B. Sand and filed on the ECF docket on May 29, 2012. The Judgments Pursuant to Rule 68 in Day, Isufi, and Rubin were signed by Judge Sand and filed on the ECF docket on May 21, 2012. 2

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During the parties telephone conference with the Court on May 16, 2012, counsel for Defendants, David Pollack, Esq., indicated that he needed a weeks time from provision of our time and expense sheets to then substantively discuss settlement of our fees and costs. Despite our provision of our time and expense sheets to him on May 21, 2012, and his promises to Jeffrey Rothman in subsequent telephone conversations that he would promptly seek authority to settle the fees and costs, no offer of any kind has been made, thus necessitating the instant fee and cost application. This continued a disturbing pattern of non-responsiveness that had occurred throughout the entire litigation of these actions. See, Rothman Decl. 7, 8, and 24, and Meyerson Decl. 14. STATEMENT OF RELEVANT FACTS Plaintiffs respectfully refer the Court to the Rothman Decl., at 1-8, and 24, and the Meyerson Decl., at 1-15, and 63-66, for a synopsis of the facts relevant to the instant fee application. THE INSTANT FEE REQUEST Plaintiffs seek compensation as attorneys fees to the date of the Offers of Judgment for Mr. Rothman in the amount of $39,757.50, and out of pocket costs in the amount of $840.45. Plaintiffs seek compensation as attorneys fees to the date of the Offers of Judgment for Mr. Meyerson in the amount of $41,730.00, and out of pocket costs in the amount of $2,175.84. See, Rothman Decl. Ex. C (Rothman fee and cost sheets), and Meyerson Decl. Ex. G (Meyerson fee and cost sheets). The total amount of fees and costs we seek for work to the date of the Offers of Judgment is $84,503.79.

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ARGUMENT I. PLAINTIFF IS A PREVAILING PARTY ENTITLED TO RECEIVE FULL ATTORNEYS FEES

42 U.S.C. 1988 provides in relevant part: In any action or proceeding to enforce a provision of section 1983 of this title the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee as part of the costs . A successful Plaintiff should ordinarily recover an attorneys fee unless special circumstances would render such an award unjust. Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968). In light of the Judgments Pursuant to Rule 68 that were signed by the Honorable Judge Leonard B. Sand and filed on the ECF docket, the Plaintiffs are prevailing parties and entitled to fee-shifting under 1988 (as well as pursuant to the terms of the Rule 68 Judgments themselves). The traditional methodology for calculating an award of attorneys fees is the lodestar method.1 A lodestar, i.e., the presumptively reasonable fee, is arrived at by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. LeBlanc-Steinberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). A reasonable hourly rate is one calculated on the basis of rates and practices prevailing in the market, i.e., in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation, and one that grants the successful civil rights plaintiff a fully compensatory fee, comparable to what is traditional with attorneys compensated by fee-paying clients. Foster v. Kings Park School Dist., 174 F.R.D. 19, 26-27 (E.D.N.Y. 1997)(quoting Missouri v. Jenkins, 491 U.S. 274, 286 (1989)).
1

See also, Meyerson Decl. Ex. C, the May 24, 2011 Opinion and Order of Judge Patterson in Barbour, et al. v. City of White Plains, et al., which discusses the Second Circuits decision in Arbor Hill Concerned Citizens v. City. of Albany, 522 F.3d 182 (2d Cir. 2008), and the United States Supreme Courts holding in Perdue v. Kenny A., 130 S. Ct. 1662, 1669 (2010), which reaffirmed the utility of the lodestar approach to evaluate the reasonableness of fee applications in the 1988 context.

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There is explicitly no rule of proportionality in fee-shifting cases, which would be entirely contrary to Congress purpose in enacting Section 1988 to encourage attorneys to take on civil rights cases with modest damages as private attorneys general2. A prevailing party, such as the plaintiff herein, is entitled to recover his or her attorneys lodestar (the presumptively reasonable fee). There is a strong presumption that the lodestar figure represents a reasonable fee. Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2nd Cir. 1999), citing to Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir.1997). II THE AMOUNT OF ATTORNEYS FEES PLAINTIFF HAS REQUESTED IS REASONABLE

As discussed in the Rothman and Meyerson Declarations, Plaintiffs counsel divided up work efficiently and attempted as much as possible to avoid redundant work. Some overlap in work, however, was necessary and indeed advantageous. See, Rothman Decl. at 2-6; Meyerson Decl. 10-14. This case involved a mass arrest of numerous people after a prolonged series of undercover investigations at the Hot Lap Dance Club by the NYPD Vice Squad, and a large volume of investigative and Criminal Court documents to be digested,

See, e.g., Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2nd Cir. 1999) (Congress enacted fee-shifting in civil rights litigation precisely because the expected monetary recovery in many cases was too small to attract effective legal representation.); See also, Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 98-99 (2d Cir.1997): A presumptively correct lodestar figure should not be reduced simply because a plaintiff recovered a low damage award, Cowan v. Prudential Insurance Company of America, 935 F.2d 522, 525 (2d Cir.1991), and a reasonable fee may well exceed the prevailing plaintiff's recovery, see, e.g., City of Riverside v. Rivera, 477 U.S. 561, 564-67, 106 S.Ct. 2686, 2689-91, 91 L.Ed.2d 466 (1986) (approving fee award of $245,456.25 after recovery of $33,350 on claims of warrantless entry and excessive force); Grant v. Bethlehem Steel Corp., 973 F.2d 96, 101-02 (2d Cir.1992) (approving fee award of $512,590.02 in employment discrimination class action settled for damages totaling $60,000), cert. denied, 506 U.S. 1053, 113 S.Ct. 978, 122 L.Ed.2d 132 (1993); Cowan v. Prudential Insurance Company of America, 935 F.2d at 523, 528 (directing district court to award fees of $54,012.76 in employment discrimination case in which plaintiff recovered damages of $15,000); cf. United States Football League v. National Football League, 887 F.2d 408, 415 (2d Cir.1989) (approving fee award of $5.5 million following antitrust plaintiff's recovery of three dollars *99 in damages), cert. denied, 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990).

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processed and organized. The Criminal Court trial transcript of two of the other arrestees alone was 464 pages long. See, e.g., Rothman Decl. 3. As noted above, the case was also unnecessarily prolonged by Mr. Pollacks dilatoriness, which required Plaintiffs counsel to expend time including seeking Court intervention - to force him to answer the complaints and to produce discovery. See, Rothman Decl. 7, 8, and 24, and Meyerson Decl. 14. As reflected in our time records, Plaintiffs counsel diligently conducted pre-filing investigation and review of voluminous documents, drafted the four complaints in these actions, served Defendants with discovery requests (multiple times), attended court conferences in person and by telephone, and reviewed Defendants inadequate responses (and addressed those inadequacies with counsel for Defendants, which issue was rendered moot by the proffering of the Offers of Judgment). The hours spent on this matter were entirely reasonable, and should be compensated in full.3 Further, and in anticipation of the NY City Law Departments expected argument about our engagement in so-called clerical or paralegal functions, there is significant authority that solo practitioners (both Plaintiffs counsel are solo practitioners, without any support staff) are entitled to bill at their regular hourly rates when they do such tasks themselves.4

It must also be kept in mind that lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee. It would therefore be the highly atypical civil rights case where plaintiff's lawyer engages in churning. By and large, the court should defer to the winning lawyer's professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker. Moreno v. County of Sacramento, 534 F.3d 1106 (9th Cir. 2008) (which is, incidentally, one of the more eloquent decisions regarding attorneys fees that I have encountered). See also, Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992), cert. denied, 506 U.S. 1053 (1993) ([Defendants] argument, however, succeeds only if we were to engage in an ex post facto determination of whether attorney hours were necessary to the relief obtained. The relevant issue, however, is not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.). McDonald ex rel Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 97 n. 6 (2nd Cir. 2006), citing to a 1982 decision by Judge Sweet declining to parse out attorneys' work based on whether it could have been done by an associate or paralegal, because the attorneys were solo practitioners. McDonald at 99, citing Weisberg v. Coastal States Gas Corp., No. 78 Civ. 5942, 1982 WL 1311, at *2 n. 1 (S.D.N.Y. Jun.16, 1982). See also, Isabel v. City of Memphis, 404 F.3d 404, 416 (6th Cir. 2005) (The City argues that the rate should be adjusted
4

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One of the oft-cited factors for evaluating a fee award listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), is the undesirability of the case. Id. at 717-719. This case had many aspects that would make it undesirable to many attorneys, including that all Plaintiffs were employed in a strip club that many members of the society consider inherently immoral. Nonetheless, Plaintiffs counsel decided that it was a righteous cause, and we decided to take this case and to do the work reasonably necessary to advance it. This factor particularly militates in favor of our recovery of our full lodestar. III THE HOURLY REQUESTED RATES ARE REASONABLE

Annexed as Exhibits A and B of the Rothman Decl., and as Exhibits E and F to the Meyerson Decl., are declarations from experienced practitioners in the field of civil rights litigation attesting to the reasonableness of plaintiffs counsels respective rates (Declarations by Ronald L. Kuby, Esq.; Matthew Brinkerhoff, Esq.; Myron Beldock, Esq., and Richard Emery, Esq.). Both the Rothman Decl. and the Meyerson Decl. further describe the considerable work in the field that both of Plaintiffs counsel have done as solo practitioners: Mr. Meyerson for more than four decades, and Mr. Rothman for over a decade.

downward based on numerous listed tasks which could have been performed at a lower hourly rate. Plaintiffs lawyer, however, is a solo practitioner who does not operate with the assistance of paralegals or support staff. This Court has stated that a reduction in attorney fees is to be applied only in rare and exceptional circumstances. This is not one of those rare and exceptional cases when a reduced award is justified.) (internal citations omitted); Rakovich v. Wade, 602 F.Supp. 1444, 1451 (E.D.Wis. 1985) (Defendants also argue that some of the work itemized in Mr. Bohren's affidavit could have been performed by a legal secretary. They refer to instances where Mr. Bohren traveled to the court to file papers. Mr. Bohren's affidavit discloses that this occurred four times. That is not a substantial amount, but more importantly, it is common for attorneys in this district to file documents in person, even among large firms that employ messengers. Mr. Bohren's fee request will not be trimmed back in this respect.); Thomas v. Cooper Indus., Inc., 640 F.Supp. 1374, 1380 (W.D.N.C. 1986) (On the question of discounting Mr. Daly's time, it is worth noting that he a solo practitioner. Unlike the defendants' lawyers, he cannot delegate matters to lesser-paid employees. It would be improper to penalize him for being a solo practitioner by discounting his time on certain matters that might, in different circumstances, be performed by office personnel.); Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir.1984)(Posner, C.J.) (When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling. That is why lawyers invariably charge their clients for travel time, and usually at the same rate they charge for other time. And if they charge their paying clients for travel time they are entitled to charge the defendants for that time in a case such as this where the plaintiffs have shown a statutory right to reasonable attorneys' fees.)

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Plaintiffs counsels rates are therefore entirely in line with prevailing market rates. Indeed, our rates are significantly lower than the rates charged by associate attorneys in many New York City law firms. See, 23 of the Rothman Decl. and Exhibit D annexed thereto, which is the National Law Journals December 19, 2011 nationwide sampling of law firm billing rates and certain firms report [of] their billing rates by associate class. See also, Barfield v. New York City Health and Hospitals Corp., 2006 WL 2356152 (S.D.N.Y.) (Rakoff, J.), affirmed 537 F.3d 132, 139 (2nd Cir. 2008):

As to attorney's fees, defendants contend, first, that the billing rate of plaintiff's attorney, i.e., $350/hour, exceeds the market rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir.1998) (internal quotation marks omitted). They argue instead that the proper rate should be, at most, $200/hour because plaintiff's counsel, having been admitted to the bar just five years ago, is comparable to a mid-level associate in a large law firm. However, this analysis ignores the considerable experience plaintiff's counsel has acquired as a solo practitioner, working primarily in the areas of wage and hour litigation over the past five years. Further, even assuming, arguendo, that defendants' comparison were here appropriate, a number of large New York firms bill the time of their fifth-year associates at between $300-$400/hour. See Billing Rates for Junior and Senior Associates, The National Law Journal (Dec.2004), at http:// www.law.com/jsp/article.jsp?id=1102340171889. Accordingly, the Court finds the rate requested by plaintiff's counsel to be fully reasonable for counsel of his skill and experience. Barfield, 2006 WL 2356152 at *1. See also, Rozell v. Ross-Holst, 576 F. Supp.2d 527 (SDNY 2008) (Francis, M.J.); see also, Exhibit B to the Meyerson Decl. (August 9, 2010 Order by Hon. Alvin K. Hellerstein in Long v. City of NY, et al., holding that the requested rate [$650 per hour] for civil rights plaintiffs attorney Jonathan Moore, Esq., was reasonable); see also, Exhibit C to the Meyerson Decl. (May 24, 2011 Opinion and Order of Hon. Judge Patterson in Barbour, et al. v. City of White Plains, et al., holding that the requested rate [$625 per hour] for civil rights plaintiffs attorney Michael Spiegel, Esq., was reasonable).

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CONCLUSION Plaintiffs counsel attempted to engage in good faith negotiations with counsel for Defendants in order to try to avoid the necessity of filing the instant fee application. The response was - as it has been throughout the course of this litigation - for counsel for Defendants to do nothing at all, and make no response at all (despite promising multiple times to do so), requiring us to seek relief from the Court. Plaintiffs counsel have now been forced to generate even more fees making the instant application. Plaintiffs have prevailed entirely in this matter, and plaintiffs counsel are presumptively entitled to a recovery of their full lodestar. If any reduction in the number of hours expended is, however, deemed to be appropriate by the Court, we respectfully submit that it should not be more than a haircut.

Dated:

New York, New York June 7, 2012 Respectfully submitted, ________/S/_______________ JEFFREY A. ROTHMAN, Esq. 315 Broadway, Suite 200 New York, NY 10007 Tel: 212 - 227 2980 JAMES I. MEYERSON, Esq. 64 Fulton Street @ Suite # 502 New York, New York 10038 Tel.: (212) 226-3310 Attorneys for Plaintiffs