Cosenza v. City of Worcester

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NATALE COSENZA, Plaintiff, v. CITY OF WORCESTER, Massachusetts, KERRY HAZELHURST, JOHN DOHERTY, T.J. COAKLEY, MARK RICHARDSON, ALLAN BURNES, DANIEL BENEDICT, BRIAN DONOHUE, ROBERT TRUGEON, DAVID GRADY, DARLENE ROCHEFORD, and AS-YET UNKNOWN WORCESTER POLICE OFFICERS, Defendants.

Civil Action No. 4:18-10936-TSH

United States District Court, D. Massachusetts

April 7, 2023

ORDER AND MEMORANDUM ON PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS (DOCKET NO. 295)

TIMOTHY S. HILLMAN SENIOR DISTRICT JUDGE

Natale Cosenza (“plaintiff”) brought this § 1983 action alleging constitutional claims against various defendants stemming from his conviction and sixteen-year incarceration for armed burglary. A jury found two of those defendants liable for violations of plaintiff's civil rights and awarded $8 million in compensatory damages and $30,000 in punitive damages. The plaintiff moves for attorney's fees and costs. (Docket No. 295). For the reasons below, his motion is denied in part and granted in part.

Background

This case was filed in May 2018 against the city of Worcester and several named and unnamed Worcester police officers, alleging four theories of liability: (1) Due Process violations, (2) malicious prosecution, (3) conspiracy, and (4) failure to intervene. (Docket No. 1).^[1]Those theories were based on alleged destruction of evidence, allegedly unduly suggestive identification procedures, prejudicial post-array commentary suppression of evidence relating to the identification of the plaintiff, and fabrication of a search for shorts or pants.

After the defendants filed a motion to dismiss, the failure to intervene theory was dismissed but all other claims survived. (Docket No. 55). At summary judgment, this Court dismissed all claims based on legal theories of malicious prosecution and all claims based on destruction of evidence and unduly suggestive identification procedures. (Docket No. 141). This left two defendants-Kerry Hazelhurst and John Doherty-defending themselves against Due Process claims. Plaintiff alleged that Hazelhurst had suppressed prejudicial post-array commentary to the victim and fabricated his testimony that he searched for shorts or pants to discredit exculpatory evidence and that Doherty had suppressed evidence concerning his supposed identification of the plaintiff on a bicycle near the scene of the crime, and that the two had conspired to commit these violations of plaintiff's civil rights.

After a six-day trial, plaintiff prevailed on all claims except that Doherty had suppressed evidence relating to his identification of the plaintiff. (Docket No. 246). Defendants' post-trial motions to overturn the verdict failed, (Docket No. 274), and this Court entered judgment (Docket No. 277). Defendants' post-trial motion to stay the judgment or waive the supersedeas bond requirement also failed. (Docket No. 294).

Standard of Review

To determine a fee award under § 1988, the Court must calculate the number of hours reasonably worked on the case then multiply it by a lodestar “benchmarked to the prevailing rates in the community for lawyers of like qualifications, experience, and competence. Perez-Sosa v. Garland, 22 F.4th 312, 321 (1st Cir. 2022) (citation omitted). That amount can then be adjusted based on several factors, discussed below. Id.

Analysis

1. The Lodestar

a. Reasonable Rate

The appropriate “community” for determining rates is the Worcester area. This undermines plaintiff's citations to Boston rates. The defendants' proposed rates (the rates their counsel charge the city of Worcester) show they failed to consider the differences between attorneys contracting with the government and attorneys contracting with private litigants. Furthermore, their proposed rates are half what this Court held was reasonable for civil rights attorneys in Worcester five years ago. Thayer v. City of Worcester, No. 13-cv-40057-TSH, 2017 WL 1190366, at *3 (D. Mass. Mar. 29, 2017). Using the rates in Thayer as a benchmark, taking into account inflation as well as the experience and specialization of the plaintiff's counsel in wrongful incarceration litigation, contra id. (finding the plaintiff's counsel to be relatively inexperienced in First Amendment law), this Court finds the following rates appropriate:

Rank

Rate

Senior Partner

$500

Junior Partner

$400

Mid-Level Associate

$300

Junior Associate

$225

Senior Paralegal

$150

Paralegal

$100

After reviewing plaintiff's counsel's affidavits, this Court finds the following application of those rates appropriate:

Employee

Rank

Rate

Jon Loevy

Senior Partner

$500

Arthur Loevy

Senior Partner

$500

Locke Bowman

Senior Partner

$500

Gayle Horn

Junior Partner

$400

Tara Thompson

Junior Partner

$400

Steve Art

Junior Partner

$400

Mark Loevy-Reyes

Junior Partner

$400

Megan Pierce

Mid-Level Associate

$300

Kelly Jo Popkin

Mid-Level Associate

$300

Imani Franklin

Junior Associate

$225

Lauren Lebata

Senior Paralegal

$150

Melinda Elk

Senior Paralegal

$150

Valeria Barajas

Senior Paralegal

$150

Monica Fuentes

Senior Paralegal

$150

Hershey Suri

Paralegal

$100

Destinie Brooks

Paralegal

$100

Eric Blackmon

Paralegal

$100

Grace Boney

Paralegal

$100

Ixsel Zavala

Paralegal

$100

Margaret Cunliffe

Paralegal

$100

Andy Thayer

Paralegal

$100

Maria Souto

Investigator

$100

b. Reasonable Billing

A reasonable rate is a function of the experience of the practitioner and the complexity of the work-partners may not charge partner-level rates for associate or paralegal-level work. Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992) (“clerical or secretarial tasks ought not to be billed at lawyers' rates, even if a lawyer performs them”); see also Matalon v. Hynnes, 806 F.3d 627, 638-39 (1st Cir. 2015) (giving wide discretion to district courts in applying the principle “that calculating a reasonable fee is . . . an assessment of the difficulty of the work involved and the time reasonably expended); Thayer, 2017 WL 1190366, at *4 (partners should not bill partner-level hours for associate-level work).

For the most part, plaintiff's counsels' hours are reasonably allocated. However, three partners spent a significant amount of time drafting motions, work that is typically done by associates and reviewed by partners.^[2]Those three partners will be reimbursed at the mid-level associate rate of $300 for those hours. Similarly, work on the ministerial portions of fee petitions is reimbursed at a reasonable paralegal rate of $100 an hour. Cocroft v. Smith, 148 F.Supp.3d 57, 62 (D. Mass. 2015). From their descriptions, three attorneys worked on the fee petition, but only one described their work as legal. That attorney's hours may be reimbursed at the associate rate, as there are substantive legal issues raised in the fee petition. The other attorneys will be reimbursed at a paralegal rate for those hours.^[3]

Finally, defendants argue that there should be no reimbursement for the services of an investigator where the case ultimately turned on the evidentiary record from the original criminal case. The defendants cite no case law for this argument. It does not strike this Court as unreasonable to hire an investigator in a case where the plaintiff's allegations were that the police lied and destroyed evidence, even if the plaintiff is unable to point to a specific piece of evidence the investigator discovered that was introduced at trial. The investigator might well have discovered inadmissible or borderline evidence that nonetheless guided plaintiff's counsel in the litigation. Furthermore, the plaintiff's investigator traveled to Worcester to simultaneously serve defendants and conduct her investigation. This Court finds $100 an hour a reasonable rate.

2. Reasonable Hours

The defendants argue that the case was severely overstaffed and could have been done by two attorneys on the theory that the case was defended by two attorneys. First, reasonable staffing for bringing and prosecuting a civil rights case is not identical to reasonable staffing for defending a civil rights case. Apart from the normal burden of proof the plaintiffs must shoulder, they must overcome qualified immunity and evidentiary hurdles. But more importantly, the defendants' objection to facing down eleven opposing attorneys is misleading.

First, five of those eleven attorneys request minimal hours (5% of the total hours and 7% of the total attorney hours). And the remaining six attorneys that request substantial hours were split into pre-trial and trial teams of three attorneys each. Thus, at any given time in the litigation, plaintiff had three counsel and defendants had two-given the structural differences noted above, not an unreasonable staffing discrepancy. A similar story plays out with paralegals. Of the ten paralegals that request reimbursement, two request only twelve hours of work and four paralegals request between three and four hours. The four remaining paralegals, like the attorneys, are split into pre-trial and trial teams, so that the plaintiff's attorneys were supported by two paralegals at any one time-the same amount the defendants' counsel employed. This Court does not find a reduction for overstaffing warranted.

Defendants also argue that because their counsel worked 536 hours between May 4, 2022, and February 13, 2023 and the plaintiff's counsel worked 770 hours during that time period, the time spent by defendants' counsel is reasonable and a 30% reduction is in order. Defendants cite no case law to support this position, which would allow an across-the-board reduction for a discrepancy in hours that is not even reflective of the total time spent on the case nor in the Court's view, particularly egregious. The relevance of that time...