Wilder v. Bernstein

975 F.Supp. 276

Shirley WILDER, et al., Plaintiffs, v. Blanche BERNSTEIN, individually and as Administrator of the New York City Human Resources Administration, et al., Defendants.

No. 78 Civ. 957 (RJW).

United States District Court, S.D. New York.

August 12, 1997.

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Marcia Robinson Lowry, Susan Lambiase, Rebecca Kim Kimura, Children's Rights, Inc., New York City, for Plaintiffs.

Julie E. O'Neill, Kenneth Michaels, Corporation Counsel of the City of New York, New York City, for Defendants.

OPINION

ROBERT J. WARD, District Judge.

Plaintiffs have filed an application, pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920, for attorney's fees and out-of-pocket litigation expenses totaling $139,852.31. For the reasons hereinafter stated, plaintiffs are awarded $72,149.15 in attorney's fees and $2,813.46 for out-of-pocket litigation expenses.

BACKGROUND

Once again the Court is called upon to resolve a dispute arising from this landmark child welfare litigation brought pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 28 U.S.C. §§ 2201, 2202. In a Judgment dated April 28, 1987, this Court gave final approval to a stipulation of settlement ("the settlement") which guaranteed the rights of children in New York City's foster care system to

receive services without discrimination on the basis of race or religion and to have equal access to quality services and to ensure that appropriate recognition be given to a statutorily permissible wish for in-religion placement in a manner consistent with principles ensuring equal protection and non-discrimination as defined in applicable New York State and federal laws, regulations and the Constitution.

Stipulation of Settlement at ¶ 4. Familiarity with the opinion in which this Court gave its conditional approval to the settlement, dated October 8, 1986, and reported at 645 F.Supp 1292 (S.D.N.Y.1986), aff'd, 848 F.2d 1338 (2d Cir.1988), is presumed.

The instant controversy involves attorney's fees for the prevailing plaintiffs, who seek compensation for work relating to post-judgment monitoring of the settlement. That plaintiffs "prevailed" for purposes of 42 U.S.C. § 1988 is not disputed by defendants. In the past, the parties have been able to reach agreement regarding the amount of attorney's fees to be paid plaintiffs.¹ For the period covering January 1, 1996 through June 30, 1996, however, the parties have been unable to reach agreement, prompting the instant application by plaintiffs.

DISCUSSION

I. Attorney's Fees

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, authorizes district courts to award prevailing parties in civil rights cases "a reasonable attorney's fee as part of the costs." In addition to recovering attorney's fees incurred in litigating a civil rights case, "[s]everal courts have held that, in the context of ... 42 U.S.C. § 1988, postjudgment monitoring of a consent decree is a compensable activity for which counsel is entitled to a reasonable fee." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 559, 106 S.Ct. 3088, 3095, 92 L.Ed.2d 439 (1986) (citing Garrity v. Sununu, 752 F.2d 727, 738-39 (1st Cir.1984); Bond v. Stanton, 630 F.2d 1231, 1233 (7th Cir.1980); Miller v. Carson, 628 F.2d 346, 348 (5th Cir.1980); Northcross v. Board of Educ. of Memphis City Schools, 611 F.2d 624, 637 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980)). Under the lodestar approach long adhered to by this Circuit, "attorney's fees are calculated by multiplying the number of billable hours that the prevailing party's attorneys spend on the case by `the hourly rate normally charged for similar work by attorneys of like skill in the area.'" New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1140 (2d Cir.1983) (quoting City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir.1977)).

Plaintiffs in this litigation are represented by Children's Rights Inc. ("CRI"), a national nonprofit children's advocacy organization (formerly the Children's Rights Project of the American Civil Liberties Union ("ACLU")). That CRI is nonprofit does not preclude it from being awarded fees under 42 U.S.C. § 1988. In Blum v. Stenson, the Supreme Court held that "[t]he statute and legislative history establish that `reasonable fees' under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel." 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984).

For the six month period ending June 30, 1996, plaintiffs seek attorney's fees in the amount of $112,457.90 for services rendered by CRI attorneys and paralegals, and out-of-pocket litigation expenses in the amount of $27,394.41. The defendants, led by the City of New York ("defendants," "the City," or "ACS"²), argue that the award sought is excessive and that plaintiffs: (1) have not demonstrated the reasonableness of their proposed hourly rates; (2) exercised poor billing judgment; and (3) submitted insufficiently detailed time sheets.

A. Hourly rates

Using the lodestar approach outlined above, plaintiffs seek fees for attorney and paralegal work in the following amounts:

No. of Hours Hourly Rate
Marcia R. Lowry3       47.43            ×       $400             =     $ 18,972.00
Susan Lambiase4       253.72            ×       $300             =     $ 76,116.00
Rebecca Kim Kimura5    73.90            ×       $185             =     $ 13,671.50
Perrin Tomich6         43.15            ×        $80             =     $  3,452.00
Natasha Celestine7      3.08            ×        $80             =     $    246.40
                                                        Total               =     $112,457.90

The Second Circuit has warned that "attorney's fees are to be awarded with an eye to moderation, seeking to avoid either the reality or the appearance of awarding windfall fees." Carey, 711 F.2d at 1139 (internal quotations and citations omitted). The burden is on the applicant to demonstrate that its fees are "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum, 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11.

Ideally, evidence of the prevailing market rate should include affidavits from attorneys with similar qualifications stating ... the affiant's personal knowledge of specific rates charged by other lawyers for similar litigation, data about fees awarded in analogous cases, evidence of the fee applicant's rates during the relevant time period, and evidence submitted by other fee applicants in like cases.

Chambless v. Masters, Mates & Pilots Pension Plan, No. 80 Civ. 4258, 1988 U.S. Dist. LEXIS 7486, at *10 (S.D.N.Y. July 21, 1988).

CRI submits the affidavit of William Josephson, of counsel to and a former partner of the New York City law firm of Fried, Frank, Harris, Shriver & Jacobson, to support its request for hourly rates of between $185 and $400 for its lawyers. In addition to the Josephson Affidavit, CRI included in its papers a survey entitled, "A Firm-by-Firm Sample of Billing Rates Nationwide," conducted by the National Law Journal and published in the December 2, 1996 issue. The City contends that the hourly rates sought are exorbitant and that civil rights lawyers should not be awarded fees based on hourly rates charged by Wall Street firms.

The National Law Journal survey contains sample hourly rates from 102 firms nationwide. Of those firms, only the six located in New York City are in the "same community" as CRI. The six New York City firms surveyed by the National Law Journal, like Fried, Frank, are large firms. According to the survey, they have an average of 264.5 attorneys each. Because they are profit-motivated and serve Fortune 500 companies, banks and financial institutions, large New York City firms are among the most expensive. It would be inappropriate to compensate attorneys at a nonprofit child advocacy organization commensurate with rates charged by the large, for-profit firms in New York City. Therefore, the National Law Journal survey is of limited value.

In this case, the hourly rates recently awarded in this district under 42 U.S.C. § 1988 are more relevant than the hourly rates Wall Street firms charge their corporate clients. Defendants' Memorandum of Law in Opposition to Plaintiffs' Fee Application included a summary of thirty-two cases in which courts in this district awarded attorneys hourly rates ranging from $125 through $325. Many of the cases, like the instant one, involved civil rights. Additionally, defendants cited five recent cases in this district awarding prevailing civil rights plaintiffs hourly paralegal rates of between $60-$75.

As noted by the Second Circuit in Carey, "an award to non-profit lawyers based upon billing rates charged by profit-making lawyers inevitably produces a windfall." Carey, 711 F.2d at 1150. In that case, the district court awarded attorney's fees to the New York Legal Aid Society and the New York Civil Liberties Union based upon hourly rates charged by Cravath, Swaine & Moore, a large New York City law firm. The Second Circuit reversed, holding that the "District Court's use of Cravath rates to compensate these non-profit offices was so inordinately generous as to be unreasonable." Id.

Awarding CRI fees based on the hourly rates of Fried, Frank would likewise produce a windfall. ACS is not a rich corporate client. It is an agency, supported by taxpayer dollars, with a mission to protect children in a City with limited resources. CRI's fees in this case will be calculated based upon the following hourly rates:

Attorney or Paralegal Hourly Rate
Marcia Robinson Lowry           $ 300
Susan Lambiase                  $ 2208
Rebecca Kim Kimura              $ 130
Perrin Tomich                   $

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