Tucker v. The City Of N.Y.

704 F.Supp.2d 347

Atiba TUCKER, Plaintiff,v.The CITY OF NEW YORK, et al., Defendants.

No. 08 Civ. 4753(VM).

United States District Court S.D. New York.

March 25, 2010.

David Bruce Rankin, David B. Rankin, Attorney at Law, Jeffrey Adam Rothman, Jeffrey Rothman, Attorney at Law, New York, NY, for Plaintiff.

Mark David Zuckerman, NYC Law Department, New York, NY, for Defendants.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

I. BACKGROUND

Plaintiff Atiba Tucker (“Tucker”) brought this action pursuant to 42 U.S.C. § 1983 and state law alleging false arrest, use of excessive force and common law claims. The complaint arises from injuries Tucker allegedly suffered in the course of an arrest. The parties settled the lawsuit by Tucker's acceptance of an offer of judgment (the “Offer of Judgment”) made by defendant City of New York (the “City”) pursuant to Federal Rule of Civil Procedure 68 for payment of $3,501.00 plus reasonable attorneys' fees and costs. The instant dispute relates to Tucker's application for payment of attorneys fees and costs totaling $39,938.06.

By Order dated March 9, 2010, Magistrate Judge Michael H. Dolinger, to whom this matter had been referred, issued a Report and Recommendation (the “Report”), a copy of which is attached and incorporated herein, recommending that Tucker be awarded $21,392.50 in fees and $849.03 in costs and expenses. The Report recommendation included payment of fees incurred in connection with litigation pursued to preserve Tucker's common law claims. The City filed timely objections to the Report challenging its findings and conclusions as regards a portion of the award that the City alleges is attributable to work performed in connection with proceedings related to Tucker's state law claims. By agreement with the City expressed in a letter from the City to the Court dated March 23, 2010 (the “Letter Agreement”), Tucker chose to waive the submission of a response to the City's objections. For the reasons stated below, the Court adopts the recommendations of the Report in part.

II. STANDARD OF REVIEW

A district court evaluating a magistrate judge's report may adopt those portions of the report to which no “specific, written objection” is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law. Fed.R.Civ.P. 72(b); see also Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). “Where a party makes a ‘Specific written objection ... after being served with a copy of the [magistrate judge's] recommended disposition,’ however, the district court is required to make a de novo determination regarding those parts of the report.” Cespedes v. Coughlin, 956 F.Supp. 454, 463 (S.D.N.Y.1997) ( citing United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)); Fed.R.Civ.P. 72(b). The Court is not required to review any portion of a magistrate judge's report that is not the subject of an objection. See Thomas, 474 U.S. at 149, 106 S.Ct. 466. A district judge may accept, set aside, or modify, in whole or in part, the findings and recommendations of the magistrate judge as to such matters. See Fed.R.Civ.P. 72(b); DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994).

III. DISCUSSION

The Court has conducted a de novo review of the factual record in this litigation pertaining to the issue raised by the City's objections, including the pleadings, the parties' respective papers submitted in connection with the underlying application for an award of attorneys' fees and costs, and filings made in this proceeding, as well as the Report and applicable legal authorities. On the basis of this review, the Court concludes that the findings, reasoning, and legal support for the recommendations made in the Report are warranted, with the exception of that portion of the Report's analysis regarding legal fees for work performed in connection with Tucker's state law claims. The Court agrees with the City that the Offer of Judgment explicitly encompassed attorneys' fees and costs related only to “plaintiff's federal claims,” and that this issue thus should be governed by and decided as a matter of ordinary contract law principles. See JA Apparel Corp. v. Abboud, 568 F.3d 390, 397 (2d Cir.2009) (“In interpreting an unambiguous contract, the court is to consider its ‘particular words' not in isolation ‘but in the light of the obligation as a whole and the intention of the parties manifested thereby’.”) (internal citation omitted). The Offer of Judgment as made by the City and accepted by Tucker unambiguously expresses its application to payment of legal fees for federal claims only; it makes no mention of fees incurred in connection with state law causes of action or state court proceedings. Given the plain language of the agreement and the clear intent of the parties, the agreement should be honored on its terms. Accordingly, the Court modifies the recommendation of the Report to exclude from the award the portion of legal fees attributable to Tucker's state law claims.

In accordance with the parties' Letter Agreement, the award shall be reduced to $20,000 for legal fees plus $849 for costs. In all other respects, for substantially the reasons set forth in the Report, the Court adopts the Report's factual and legal analyses and determinations, as well as its substantive recommendations, as the Court's ruling on Tucker's underlying motion for an award of attorneys' fees and costs.

IV. ORDER

For the reasons discussed above, it is hereby

ORDERED that the Report and Recommendation of Magistrate Judge Michael H. Dolinger dated March 9, 2010 (Docket No. 30) is adopted in part, and the motion (Docket No. 20) of plaintiff Atiba Tucker for an award of reasonable attorneys' fees and costs is GRANTED; and it is finally

ORDERED that the Clerk of Court is directed to enter judgment for Tucker in an amount of $20,000 for attorney's fees and $849 for costs.

The Clerk of Court is directed to withdraw any pending motions and to close this case.

SO ORDERED.

Report and Recommendation of Magistrate Judge Michael H. Dolinger dated March 9, 2010

Attachment to the Court's Decision and Order dated March 25, 2010

REPORT & RECOMMENDATION

MICHAEL H. DOLINGER, United States Magistrate Judge.

TO THE HONORABLE VICTOR MARRERO, U.S.D.J.:

Plaintiff Atiba Tucker commenced this lawsuit in mid-2008 against the City of New York, a City police officer and sergeant, and various officer John Doe and supervisory Richard Roe defendants. In his pleading he complained about the circumstances of his arrest and asserted claims for, among other things, false arrest and the use of excessive force in handcuffing him. Invoking 42 U.S.C. § 1983, he asserted a variety of federal claims, principally under the Fourth Amendment, as well as state-law claims, and sought compensatory and punitive damages.

On March 4, 2009 plaintiff accepted an offer of judgment previously served by defendant City of New York, which proposed a payment of $3,501.00 plus “reasonable attorneys' fees, expenses and costs”. (R. 68 Offer of Judgment dated Feb. 18, 2009). The parties subsequently attempted unsuccessfully to resolve the amount of the fee, expense and cost award. Having failed in that effort, they have resorted to motion practice.

In plaintiff's initial papers, he seeks an award of $35,920.28 in fees for the work principally of two lawyers, plus an additional $849.03 in expenses. In plaintiff's reply papers he asks for an additional $3,168.75 in fees to cover the work embodied in that submission. In short, plaintiff seeks nearly $40,000.00 in fees and expenses. Defendant opposes, contending that plaintiff's attorneys are substantially overbilling their hours, are seeking highly inflated hourly rates, are requesting fees for work that is not subject to a fee award, are only marginally competent and should be limited to an award of no more than $5,000.00 in fees and costs for what defendant considers to be at best a weak case and result.

For the reasons that follow, we recommend that plaintiff be awarded $21,392.50 in fees and $849.03 in costs and expenses.

Prior Proceedings

One of plaintiff's two attorneys of record, David B. Rankin, Esq., received this case pre-suit as a referral from another attorney in or about August 2007. He then persuaded a more experienced lawyer, Jeffrey A. Rothman, Esq., to work with him on the case. The basis for the intended lawsuit was the arrest of their client, Mr. Tucker, while he was on the rear porch of a single-family house in the Bronx. Mr. Tucker claimed that he had been found on private property because he had fled from two carjackers, badly breaking his wrist in the process, and that he was seeking assistance in summoning the police and avoiding his armed attackers. The residents of the house called the police after Tucker began banging on the back door, breaking a glass door pan e in the process. According to Mr. Tucker, there was no basis for the arrest. Moreover, he asserted that in view of the severe pain that he was experiencing from his broken wrist-which subsequently required surgery-it was unreasonable for the police to insist on rear-cuffing him when transporting him in a patrol car to the precinct, a condition so painful that he fainted once he arrived at the precinct. (Compl. at ¶¶ 12-30).

Mr. Tucker was charged with two counts of burglary and with criminal trespass and criminal mischief. The District Attorney later dismissed the burglary charges, and Tucker subsequently received an Adjournment in Contemplation of Dismissal on the other charges, paying $300.00 and a five-percent surcharge. ( Id. ¶¶ 31-35).

Before commencing suit in this court, counsel filed an application in the New York State Supreme Court under Gen. Mun. L. § 50-e(5) for leave to file a notice of claim out of time with the City.¹ The state...