Moore v. Keller

1

LISE Y. MOORE, SABRIA MOORE, and JALIA GRAHAM, Plaintiffs, v. MICHAEL KELLER, MICHAEL JORGENSEN, and JOSEPH NAPPO, Defendants.

No. 5:16-CV-1230

United States District Court, N.D. New York

November 22, 2021

SIDNEY P. COMINSKY, LLC, SIDNEY P. COMINSKY, ESQ. SYLVIA BODE KRAUS ESQ. Attorneys for Plaintiffs

HON LETITIA JAMES, AIMEE COWAN, ESQ New York State Attorney General Ass't Attorney General Attorneys for Defendants

MEMORANDUM-DECISION AND ORDER

DAVID N. HURD United States District Judge

I. INTRODUCTION

On September 19, 2016, plaintiffs Michael Moore (“Michael”), Lise Y. Moore (“Lise”), Sabria Moore (“Sabria”), and Jalia Graham (“Jalia”) filed this civil rights action in Supreme Court, Onondaga County, against defendants SUNY Upstate University police officers Michael Keller (“Officer Keller”), Paul Daugherty (“Officer Daugherty”), Michael Jorgensen (“Officer Jorgensen”), Joseph Nappo (“Officer Nappo”), public safety officer Stephen Mauser (“Officer Mauser”), and registered nurse Julie Sunser (“Nurse Sunser”). Dkt. No. 1. According to the complaint, these individuals violated 42 U.S.C. § 1983 and related state law when they forcibly prevented Michael from leaving the hospital and arrested Lise, Sabria, and Jalia. Dkt. No. 2.

On October 11, 2016, the defendants removed the case to federal court and answered the complaint.^[1] Dkt. Nos. 1, 4. After the plaintiffs' motion to remand was denied, Moore v. Keller, 2017 WL 3822053 (N.D.N.Y. Aug. 31, 2017), the parties completed discovery and then stipulated to the dismissal of Officer Daugherty, Officer Mauser, and Nurse Sunser. Dkt. Nos. 63, 67, 68.

On April 22, 2020, Officer Keller, Officer Jorgensen, and Officer Nappo (collectively “defendants”) moved under Federal Rule of Civil Procedure (“Rule”) 56 for summary judgment on all of the remaining claims. That motion was granted in part and denied in part on October 29, 2020. Moore v. Keller, 498 F.Supp.3d 335 (N.D.N.Y. 2020). As relevant here, Lise, Sabria, and Jalia's § 1983 false arrest and excessive force claims remained for trial.

On April 29, 2021, a jury found that Officer Keller had falsely arrested Jalia and awarded her $30, 000 in damages.^[2] Court's Ex. No. 6. However, the jury rejected Lise and Sabria's § 1983 claims against Officers Nappo and Jorgensen. Court's Ex. Nos. 4 and 5. Both parties sought post-trial relief, which was denied in all respects on September 7, 2021. Moore v. Keller, 2021 WL 4066541 (N.D.N.Y.).

On October 7, 2021, Jalia (“plaintiff”) moved for an award of reasonable attorney's fees pursuant to 42 U.S.C. § 1988. Dkt. No. 145. Defendants opposed the motion in part. Dkt. No. 146. The motion has been fully briefed and will be decided on the basis of the submissions without oral argument.

II. DISCUSSION

In her opening brief, plaintiff seeks an award of attorney's fees in the amount of $158, 624.00 plus litigation costs of $10, 797.93. Pl.'s Mem., Dkt. No. 145-7 at 13.^[3] Both of these figures are broken down into line-item detail in plaintiff's various supporting submissions. See Exs. A-C to Cominsky Decl., Dkt. Nos. 145-2-145-4.

In opposition, defendants acknowledge that plaintiff is entitled to some amount of fees and costs as a result of the jury's favorable award but argue that (1) a reduction of the hourly rates is appropriate; (2) time entries related to defendant Mauser should be struck; and (3) some of plaintiff's litigation costs are excessive or otherwise inappropriate. Defs.' Opp'n, Dkt. No. 146 at 6-15.

In reply, plaintiff explains that her counsel “has already excluded much billable time, including multiple client meetings and client telephone conferences, from the fee request because of the loss of the firm's calendar prior to 2015.” Pl.'s Reply, Dkt. No. 149 at 4. Plaintiff also opposes a reduction in fees related to defendant Mauser. Id.

A. Attorney's Fees

“A court may award reasonable attorney fees to the ‘prevailing party' in a § 1983 action.” Brooks v. Roberts, 501 F.Supp.3d 103, 110 (N.D.N.Y. 2020) (citing 42 U.S.C. § 1988(b)). “Determining whether an award of attorney's fees is appropriate requires a two-step inquiry.” Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996).

First, the party must be a “prevailing party” in order to recover. Brooks, 501 F.Supp.3d at 110. “A party is considered a prevailing party for purposes of awarding attorney's fees under § 1988 if the party ‘succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'” Osterweil v. Bartlett, 92 F.Supp.3d 14, 23 (N.D.N.Y. 2015) (D'Agostino, J.) (quoting Farrar v. Hobby, 506 U.S. 103, 109 (1992)).^[4]

Second, “the requested fee must also be reasonable.” Pino, 101 F.3d at 237. “To determine a reasonable amount of attorneys' fees, courts use the lodestar method-the product of a reasonable hourly rate and the hours reasonably spent on the case.” Brooks, 501 F.Supp.3d at 111 (citation omitted).

Under the lodestar approach, the “reasonable hourly rate” is determined by reference to “what a reasonable, paying client would be willing to pay.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany (“Arbor Hill”), 522 F.3d 182, 184 (2d Cir. 2008). As the Second Circuit has explained, “the reasonable, paying client” is one “who wishes to pay the least amount necessary to litigate the case effectively.” Id.

To make that determination, courts must consider a number of factors, including but not limited to:

the complexity and difficult of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.

Arbor Hill, 522 F.3d at 184.

Beyond this non-exclusive list of factors, “district courts enjoy substantial discretion in determining an appropriate fee award, and may use estimates based on their overall sense of a suit.” Brooks, 501 F.Supp.3d at 112 (cleaned up). Indeed, a district court may even use a “percentage deduction of the requested fees as a practical means of trimming fat from the fee application.” Id. As the Supreme Court has explained, “[t]he essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).

1. Hourly Rates

Plaintiff's motion requests fees for the work completed by four attorneys and two paralegals. In particular, plaintiff seeks: (1) a rate of $400 per hour for Sidney Cominsky, an attorney with greater than forty years' experience; (2) a rate of $250 per hour for Sylvia Bode Kraus, an attorney with between five and ten years' experience; (3) a rate of $200 per hour for Daniel Greene and Jenine Seeber, two attorneys with fewer than two years' experience; and (4) a rate of $120 per hour for Anna Poyurovsky and Nicole Wojtalewski, two paralegals. Pl.'s Mem. at 5. Plaintiff has provided time records for these individuals and her supporting materials document their relevant experience.^[5]

Defendants' opposition contends that these hourly rates should be reduced. Defs.' Opp'n at 6-11. As defendants explain, recent cases from elsewhere in this District establish that each of plaintiff's requested hourly rates are slightly higher than the norm. Id. Defendants argue that plaintiff's requested hourly rates should be reduced to match up with other fee awards from the Northern District. Id.

In determining a reasonable hourly rate, “[t]he Second Circuit has instructed district courts to consider ‘all case-specific variables' including [the] factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).” Torcivia v. Suffolk County, 437 F.Supp. 3D 239, 251 (E.D.N.Y. 2020). These twelve Johnson factors are:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Torcivia, 437 F.Supp.3d at 251 n.3 (citations omitted). Importantly, however, the trial court “need not robotically recite and make separate findings as to all twelve of the Johnson factors.” Id. (cleaned up).

Upon review of the parties' briefing, the Court agrees with defendants and will reduce the hourly rates accordingly. Under the “forum rule, ” the reviewing court generally applies the prevailing hourly rate in the district in which it sits to calculate a presumptively reasonable fee. Osterweil, 92 F.Supp.3d at 26. Thus, “[f]ees should not be awarded at higher out-of-district rates unless a reasonable client would have selected out-of-district counsel because doing so would likely . . . produce a substantially better net result.” Bergerson v. N.Y State Office of Mental Health, 652 F.3d 277, 290 (2d Cir. 2011...