Montanez v. City of Chester

MALEATRA MONTANEZ, Plaintiff, v. CITY OF SYRACUSE, POLICE OFFICER CHESTER D. THOMPSON,and POLICE CAPTAIN THOMAS GALVIN, Defendants.

6:16-cv-00550 (BKS/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 31, 2020

Appearances:

For Plaintiff:

Edward Sivin

Sivin & Miller, LLP

20 Vesey Street, Suite 1400

New York, NY 10007

For Defendants City of Syracuse and Thomas Galvin:

Kristen E. Smith

Corporation Counsel of the City of Syracuse

Christina F. DeJoseph

Senior Assistant Corporation Counsel

233 E. Washington Street, Suite 300

Syracuse, NY 13202

Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Maleatra Montanez brought this action against defendants City of Syracuse (the "City"), Police Officer Chester D. Thompson, Chief of Police Frank L. Fowler, and Police Captain Thomas Galvin. (Dkt. No. 1). Plaintiff alleged that on February 14, 2015, Thompson—a patrol officer with the Syracuse Police Department ("SPD")—reported to her residence in response to a 911 call and directed her to engage in sexual acts with him. (Id.). Plaintiff brought: (1) a battery claim against Thompson and the City; (2) an intentional infliction of emotional distress ("IIED") claim against Thompson and the City; (3) a prima facie tort claim against Thompson and the City; (4) a negligent hiring, training, supervision, and retention claim against the City; (5) a Fourth Amendment excessive force and unreasonable search and seizure claim against Thompson; (6) a Fourteenth Amendment substantive due process claim against Thompson; (7) a supervisory liability claim against Fowler; (8) a supervisory liability claim against Galvin; and (9) a Monell¹ municipal liability claim against the City. (Id.). The Court granted Defendants' motion for summary judgment in part, dismissing the battery, IIED, prima facie tort, and negligent hiring claims against the City and the supervisory liability claims against Fowler. Montanez v. City of Syracuse, No. 16-cv-550, 2019 WL 315058, 2019 U.S. Dist. LEXIS 10351 (N.D.N.Y. Jan. 23, 2019). Plaintiff withdrew her prima facie tort claim and her Fourth Amendment claim against Thompson at a final pretrial conference, and the parties prepared to proceed to trial on the Monell claim against the City, the supervisory liability claim against Galvin, and the substantive due process claim against Thompson.

Five days before trial was scheduled to begin, these claims were dismissed by reason of settlement. (Dkt. No. 175). Pursuant to the agreement, Plaintiff accepted $500,000 to settle her claims against the City. (Dkt. No. 181-1, at 8). Plaintiff now moves for attorney's fees under 42 U.S.C. § 1998(b). (Dkt. No. 181). Plaintiff seeks an award of attorneys' fees in the amount of $994,655.50 for 1,787.64 hours of attorney and paralegal work, and costs in the amount of$40,557.41 (Dkt. No. 181-2, ¶ 46; Dkt. No. 194-12, at 3 n.1; Dkt. No. 181-4, at 5).² Defendants oppose the motion and seek to reduce Plaintiff's fees. (Dkt. No. 192). For the reasons that follow, Plaintiff's motion is granted in part and denied in part.

II. DISCUSSION³

A. Attorney's Fees in § 1983 Cases

1. Prevailing Party

To "ensure effective access to the judicial process for persons with civil rights grievances," Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), § 1988(b) empowers the Court to award reasonable attorney fees to the "prevailing party" in a § 1983 action. 42 U.S.C. § 1988(b). To "qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of h[er] claim." Farrar v. Hobby, 506 U.S. 103, 111 (1992). This includes either "an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement." Farrar, 506 U.S. at 111 (citations omitted). Plaintiff litigated this case through summary judgment and then entered into an agreement with the City, shortly before the scheduled trial, agreeing to accept $500,000 in settlement. Plaintiff is thus a "prevailing party" under § 1988, entitled to recover attorney's fees. Accordingly, the Court must determine the "reasonable attorney's fee" in this case. Lilly v. City of New York, 934 F.3d 222, 228 (2d Cir. 2019).

2. Presumptively Reasonable Fee

District courts have "considerable discretion in determining what constitutes reasonable attorney's fees in a given case." Barfield v. New York City Health & Hosps Corp., 537 F.3d 132,151 (2d Cir. 2008). Courts in the Second Circuit generally use the lodestar, or "presumptively reasonable fee," approach to calculate reasonable attorney's fees. See Lilly, 934 F.3d at 229. This approach requires a court to set a "reasonable hourly rate, taking account of all case-specific variables," and determine "the appropriate billable hours expended." Lilly, 934 F.3d at 230 (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 189-90 (2d Cir. 2008)); see also Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) ("Under this approach, the number of hours reasonably expended on the litigation is multiplied by a reasonable hourly rate for attorneys and paraprofessionals."); DiFilippo v. Morizio, 759 F.2d 231, 234 (2d Cir. 1985) ("[W]here . . . the party achieves success on the merits, an award of all reasonable hours at a reasonable hourly rate, i.e., the lodestar figure, is presumptively appropriate.").⁴ The prevailing party is also entitled to attorney's fees for hours expended in bringing its § 1988 application. Restivo v. Nassau Cty., No. 06-cv-6720, 2015 WL 7734100, at *2 n.3, 2015 U.S. Dist. LEXIS 160336, at *5 n.3 (E.D.N.Y. Nov. 30, 2015) (citing Valley Disposal, Inc. v. Cent. Vt. Solid Waste Mgmt. Dist., 71 F.3d 1053, 1060 (2d Cir. 1995)) aff'd sub nom. Restivo v. Hessemann, 846 F.3d 547 (2d Cir. 2017).

a. Reasonable Hourly Rates

Plaintiff asserts that her attorneys are entitled to an hourly rate consistent with rates typically awarded in the Southern District of New York, where her attorneys are based.Defendants respond that the Court should set the rates consistent with those in the Northern District. The Supreme Court has explained that district courts should use the "prevailing market rates in the relevant community" in determining the reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 895 (1984). The Second Circuit has interpreted the "community" to mean "the district where the district court sits." Arbor Hill, 522 F.3d at 190 (citing Polk v. N.Y. State Dep't of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983)); Grant v. City of Syracuse, 357 F. Supp. 3d 180, 200-01 (N.D.N.Y. 2019).

"[W]hen faced with a request for an award of higher out-of-district rates, a district court must first apply a presumption in favor of application of the forum rule." Simmons v. New York City Transit Auth., 575 F.3d 170, 175 (2d Cir. 2009). To "overcome that presumption, a litigant must persuasively establish 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." Id. The party "seeking the award must make a particularized showing, not only that the selection of out-of-district counsel was predicated on experience-based, objective factors, but also of the likelihood that use of in-district counsel would produce a substantially inferior result." Id. at 176. "Among the objective factors that may be pertinent is counsel's special expertise in litigating the particular type of case, if the case is of such nature as to benefit from special expertise," id., or by showing that "local counsel possessing requisite experience were unwilling or unable to take the case." Id. (citing In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987)).

Here, Plaintiff seeks out-of-district hourly rates of $700 for partners Edward Sivin and Glenn Miller, $250 for associate Moses Ahn, $200 for associate Andrew Weiss, $170 for legal assistant Jake Ethé, and $150 for other legal assistants. (Dkt. No. 181-1, at 15-16). In support of her motion for fees, Plaintiff submitted: a declaration regarding her difficulty seeking in-forumrepresentation, (Dkt. No. 181-3), a declaration by Sivin, as well as his time records, (Dkt. Nos. 181-2, 181-12), time records for the other attorneys and legal assistants who worked on the case, (Dkt. No. 181-13 to -17), and an itemization of litigation expenses, (Dkt. No. 181-19). Plaintiff argues that the Court should deviate from the forum rule because (i) she was unable to secure counsel located in the Northern District, (Dkt. No. 18-1, at 10), and (ii) local counsel "would have produced a substantially inferior result," (Dkt. No. 194-12, at 11). Neither argument is persuasive here.

Turning to the first argument, Plaintiff has not satisfied her burden of showing that local counsel was "unwilling or unable to take the case." Simmons, 575 F.3d at 175. Plaintiff was represented initially by Michelle Rudderow of the in-district law firm Williams & Rudderow, PLLC, who filed a Notice of Claim against the City on Plaintiff's behalf. (Dkt. No. 181-3, ¶ 2). Williams & Rudderow terminated the representation nine months later due to a "breakdown in the relationship between Montanez and W&R." (Dkt. No. 181-4, ¶ 2). Following that breakdown, Plaintiff argues she "tried unsuccessfully to find another lawyer in the Syracuse area to represent" her to pursue this lawsuit. (Dkt. No. 181-3, ¶ 3). Plaintiff also claims she was unsuccessful in retaining counsel in the Utica area, (Id. ¶ 4), and that "by December 2015, [she] was ready to give up [her] search for a lawyer and not pursue a lawsuit in connection with what happened to [her]." (Id. ¶ 5). Plaintiff asserts that the "$500,000 settlement that [she] ultimately obtained after securing counsel in the SDNY was a 'substantially better result'" than if she had "not pursued a lawsuit." (Dkt. No. 181-1, at 10-11).

Citing Monsour...