[69] The time records submitted by Mr. Ofodile as annexed to his affidavit, appear to be a review or compilation of the work he did. They do not appear to be contemporaneous records. In addition, the Court notes that the handwritten summaries on the bottom of each page of Exhibit 1 to Mr. Ofodile's affidavit are very difficult to comprehend. In order to make sure that the Court fully understands the extent of Mr. Ofodile's hourly claim, the Court had a telephone conference call to clarify the issue. While the compilations submitted by Mr. Ofodile are certainly permitted in this type of application, it appears, with reasonable certainty, that the time records submitted by him were compiled for the purposes of this application. However, the Court accepts the representation by Mr. Ofodile in his Reply Memorandum of Law that "these records are kept on the computer and were copies of the original records".

[70] Defense counsel contends that the records are "so riddled with grossly inflated `entries' that it is virtually impossible to analyze each one." The Court finds that the records submitted by Mr. Ofodile reveal excessive, redundant and unnecessary hours which cannot be included in the fee allocation. For example, Mr. Ofodile asks for 6 hours to read the 50H transcript; to draft interrogatories and requests for production 7 hours; a letter to attorney Horn regarding discovery interrogatories 10 hours; a letter to Horn re: failure to comply with discovery 1 hour; a letter to Magistrate Judge Lindsay 2 hours; reviewing defendants' responses to plaintiff's second request for production of documents, etc. 6 hours; to review and read a long letter from the plaintiff 1 hour and 20 minutes; preparing for depositions 26 hours and 30 minutes; reading and summarizing deposition testimony 13 hours; trial preparation approximately 57 hours; preparation during trial 54 hours (so that his pretrial and during trial preparation was a total of 111 hours); research and writing of post trial motions 28 hours.

[71] In this regard, when there is a fee application containing excessive hours, it is within the discretion of the district court to make percentage reductions. "Courts have recognized that it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application. These courts have endorsed percentage cuts as a practical means of trimming fat from a fee application." NYSARC v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983).

[72] Following this procedure, courts in this Circuit and elsewhere have made percentage cuts of fee awards where there was excessive billing. See Copeland w. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980) (22% reduction); S.E.C. v. Goren, 272 F. Supp.2d 202, 213 (E.D.N.Y. 2003) (hours reduced by 30%); Elliot v. Board of Education of City of Rochester, 2003 WL 2296612 (W.D.N.Y. 2003) (10% reduction in hours); Sabatini v. Corning-Painted Post Area School Dist., 190 F. Supp.2d 509, 522 (W.D.N.Y. 2001) (hours for total non-travel items reduced by 15%).

[73] In sum, after reviewing the papers submitted on the fee application and considering the nature of the case, plaintiff's attorney's expertise and the time reasonably necessary to prosecute the action, the Court is of the view that a portion of the time spent by Mr. Ofodile was excessive, redundant and unnecessary. Under these circumstances, a district court has the discretion to deduct a reasonable percentage of the number of hours claimed to effect the necessary reduction. In this regard, Courts need not evaluate and rule on each and every entry. A reduction of 20% of the non-travel hours claimed by Mr. Ofodile is warranted.

[74] b. As to Chidi Eze, Esq.

[75] The Court has reviewed the affidavit of Chidi Eze, Esq. in support of his fee application. He is an attorney admitted to practice in the State of New York. However, he fails to state when he was admitted or whether he was admitted in the Eastern District of New York. Defense counsel in his Memorandum in Opposition states that Mr. Eze is "not admitted in this district or any federal court for that matter, and has only been a member of the bar for a short time." From his affidavit, the Court cannot discern whether these assertions are true. Accordingly, considering all the factors in Hensley, the facts and circumstances of the case and the limited experience of Mr. Eze, the Court fixes his compensation at the rate of $125.00 per hour.

[76] Defense counsel further contends that Mr. Eze "did nothing at the trial, did not ask a single question or make a single argument" and "this case is not of so complex (sic) that it required two (2) lawyers to prepare and try the case." The issue of a "second seated" attorney at a trial was reviewed in New York State Assoc. For Retarded Children Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983) when the use of multiple counsel was discussed.

[77]

In assessing the extent of staffing and background research appropriate for a given case, a district court must be accorded ample discretion. Under section 1988, prevailing parties are not barred as a matter of law from receiving fees for sending a second attorney to depositions or an extra lawyer into court to observe and assist. See Siegal v. Merrick, 619 F.2d 160, 164 (2d Cir. 1980). Nor are counsel forbidden from receiving fees for background research. See Ross v. Saltmarsh, supra, 521 F. Supp. at 757-59. Of course, a trial judge may decline to compensate hours spent by collaborating lawyers or may limit the hours allowed for specific tasks, but for the most part such decisions are best made by the district court on the basis of its own assessment of what is appropriate for the scope and complexity of the particular litigation.

[78] The Court cannot say that in this case, an associate counsel in or out of court assisting counsel in chief was unnecessary. Therefore, the Court will allow a fee for participation by Mr. Eze. A review of his claimed hours is now in order. In his affidavit, Mr. Eze asserts that his time records as an "Associate Attorney of Record" were kept "contemporaneously with the services performed when they were performed." In reviewing his time records the Court finds that the number of hours claimed is excessive and especially redundant. Most of the same work was done by counsel in chief Ofodile.

[79] In particular, the following entries are excessive and partially redundant: Reading and reviewing deposition transcripts 24 hours; reading and reviewing entire Hightower file 12 hours; preparing for trial (redundant in view of the above assignments) a total of 27½ hours; trial preparation during trial 30½ hours, a total of 58 hours for trial preparation; and post trial research and writing 24 hours. Eze seeks a total of:

197.20 hours @ $150.00 = $29,580 Travel 46 hours @ $75.00 = 3,450 _______ Total $33,030

[80] Again, after reviewing all of the papers and the legal background of the applicant, the Court is of the view that a good portion of the time spent by Mr. Eze was excessive, redundant and unnecessary. Under these circumstances, a reduction of 30% of the non-travel hours claimed by Eze is warranted.

[81] c. As to William J. Robedee, Esq.

[82] Counselor Robedee is admitted to practice in both New York and New Jersey. He does not say when he was admitted, although he was an Assistant District Attorney in Kings County for two years and engaged in the private practice of law for six months at the time of his retention. He stated that he had three years of experience in 1999 and requests a fee of $200.00 per hour. When he agreed to represent the plaintiff, he had just started his own practice. The Court notes that in the plaintiff's Memorandum of Law, Mr. Ofodile states that he was asked to take over the case because of Robedee's inexperience in this type of litigation. Robedee states that he expended 48.5 hours. Robedee's application is unaccompanied by any contemporaneous time records.

[83] In response, defense counsel raises the issue of the lack of contemporaneous time records. In addition, counsel states that the mathematical calculation of 48.5 hours is incorrect. The Court computed the claimed hours on a calculator and finds that Robedee's figures do add up to his claimed 48.5 hours. However, the Court finds that the 20 hours claimed for investigation may very well have been involved in the plaintiffs criminal matter, in which Robedee also represented him. The Court therefore rejects the 20 hours investigation claim and allows the remaining 28.5 hours. However, no time records of any kind have been produced by Robedee and, for that reason, the Court further reduces the remaining claimed hours by 50% to 14.25 hours.

[84] As to the lodestar hourly rate, with the limited information available to the Court and the fact that Robedee had just started his law practice, the Court finds that an hourly rate of $150.00 is appropriate.

[85] d. As to Travel Time

[86] Courts in this Circuit customarily reimburse attorneys for travel time at fifty percent of their hourly rate. See, e.g., Wilder v. Bernstein, 975 F. Supp. 276, 283 (S.D.N.Y. 1997); Clark v. Phillips, 965 F. Supp. 331, 336 (N.D.N.Y. 1997); DeCarlo v. Perales, 963 F. Supp. 181, 184 (N.D.N.Y. 1997); Davis v. City of New Rochelle, 156 F.R.D. 549, 559 (S.D.N.Y. 1994); Loper v. New York City Police Dep't, 853 F. Supp. 716, 720 (S.D.N.Y. 1994); In Re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1296, 1321-22, 1349 (E.D.N.Y. 1985), aff'd in part, rev'd in part, 818 F.2d 226 (2d Cir. 1987). This Court will follow that custom and in this case the plaintiff's counsel will be awarded fifty percent of their hourly rate for travel time.

[87] e. As to Unsuccessful Claims

[88] As stated in Hensley, the "results obtained" factor "is particularly crucial where a plaintiff is deemed `prevailing' even though he succeeded on only some of his claims for relief" 103 S.Ct. at 1940. In dealing in partially successful claims, two questions must be presented. "First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?" Id. at 1940. The Hensley Court then went on to explain in more detail the "related claims" concept.

[89]

It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.

Hensley, 461 U.S. at 434-37.

[90] Defense counsel contends that the plaintiff's unsuccessful claims were not intertwined with the successful claims. He argues for a reduction in the fee on the ground that the unsuccessful claims "arose out of completely separate and unrelated incidents involving completely different individuals." On the other hand, plaintiff's counsel contends that the failed October 20, 1998 at 10:00 a.m. excessive force claim was inextricably linked to the later October 20, 1998, 12 noon incident. The plaintiff's theory was that he, as a pre-trial detainee had a fight with Corrections Officers Kennedy and Hartung at 10:00 a.m. and was assaulted on the same day at 12 noon in retaliation for the earlier incident in which he was accused of assaulting the correction officers involved. The Court agrees that these two Section 1983 battery claims were related and inextricably linked.

[91] However, the Court also finds that the November 30, 1998 alleged battery by unknown correction officers is unrelated to the two October 20, 1998 incidents. Therefore, the lodestar must be reduced to the extent that the plaintiff was unsuccessful on a claim that was distinct from those in which the plaintiff prevailed. For the time spent on the unsuccessful November 10, 1998 claim, the Court finds that a 20% reduction in the fees of all counsel is required.

[92] In addition, the Court further finds that the plaintiff's degree of success on the interrelated successful and unsuccessful claims of October 20, 1998, does not warrant a reduction on the fee award for those claims.

[93] f. As to the Plaintiff's Original Time Records

[94] In his Memorandum in Opposition, defense counsel requests that the plaintiff's counsel produce the original contemporaneous time records involving the services rendered in this case. As stated above, the Court accepts the representation by attorney Anthony Ofodile that the contemporaneous time records are in his computer. The defendants' request to produce the records is therefore denied.

[95] g. As to Costs

[96] The plaintiff is entitled, under 42 U.S.C. § 1988, to reimbursement for the reasonable costs incurred in pursuing the litigation, although payment is not permitted for items which constitute routine office overhead. See LeBlanc-Steinberg v. Fletcher, 143 F.3d at 763. The Second Circuit has held that reasonable identifiable out-of-pocket disbursements, which are ordinarily charged to clients, are recoverable. See United States Football League v. National Football League, 887 F.2d 408, 416 (2d Cir. 1989); see also Kuzma v. Internal Revenue Service, 821 F.2d 930, 933-34 (2d Cir. 1987) (providing a non-exclusive list of recoverable costs including photocopying, travel and telephone costs).

[97] Defense counsel requests that the plaintiff's counsel is entitled to such an award only for costs supported by invoices. The Court agrees. The invoices annexed to the affidavit in support of this application amount to the total sum of $2,934.31, which will be the sum awarded for costs. See Fed.R.Civ.P. 54(d)(1).

[98] II. CONCLUSION

[99] The Court now recalculates the fees to be awarded to all three plaintiffs' counsel.

[100] Anthony Ofodile 393.60 hours @ $250 per hour = $ 98,400.00 Travel 78 hours @ $125 per hour = 9,750.00 ___________ Total $ 108,150.00

[101]

Less 20% reduction 21,630.00 ___________ Net Fee $ 86,520.00

Chidi Eze 138.04 hours @ $125 per hour = $ 17,237.50 Travel 49 hours @ $62.50 per hour = $ 3,062.50 ___________ 20,300.00

Less 20% reduction 4,060.00 ___________ Net Fee $ 16,240.00

William S. Robedee 14.25 hours @ $150 per hour = $ 2,137.50 Less 20% reduction 427.50 ___________ Net Fee $ 1,710.00

[102] With regard to the remittitur of damages, the plaintiff may file with the Clerk of the Court on or before July 23, 2004, an acceptance of remittitur damages to the amount of $100,000. In the event that the plaintiff does not file an acceptance of the remittitur on or before July 23, 2004, a new trial solely on the issue of compensatory damages will commence on a date to be set by the Court.

[103] If there is a consent to the remittitur, the Clerk is directed to enter judgment in favor of the plaintiff Ennis Hightower against the defendants Correction Officer Matthew Anderson, Correction Officer John Lagormarsino and Cpl. Gary McGuinness for compensatory damages in the sum of $100,000, and for punitive damages against the defendant Matthew Anderson in the sum of $15,000, for punitive damages against the defendant John Lagormarsino in the sum of $15,000, for punitive damages against the defendant Gary McGuinness in the sum of $35,000, together with total attorneys fees of $104,470 and costs in the sum of $2,934.31.

[104] SO ORDERED.

[105] [fn*] Tr. refers to the trial transcript.

HIGHTOWER v. NASSAU COUNTY SHERIFF'S DEPARTMENT, 343 F.Supp.2d 191 (E.D.N.Y. 11/01/2004)

[1] United States District Court, E.D. New York

[2] 99CV2523(ADS).

[3] 343 F.Supp.2d 191

[4] November 1, 2004.

[5] ENNIS HIGHTOWER, Plaintiff,
v.
NASSAU COUNTY SHERIFF'S DEPARTMENT, C.O. JOHN KENNEDY, C.O. RONALD HARTUNG, C.O. MATTHEW ANDERSON, C.O. JOHN LAGORMARSINO, CPL. GARY McGUINNESS, Defendants.

[6] The opinion of the court was delivered by: ARTHUR SPATT, District Judge

[7] MEMORANDUM OF DECISION AND ORDER

[8] The defendants, Nassau County Sheriff's Department and five correction officers (collectively, the "Defendants"), move for reconsideration and reargument of this Court's July 19, 2004 Memorandum of Decision and Order ("Order") that reduced the Jury's verdict to a total of $165,000 and determined the attorneys' fees of the plaintiff, Ennis Hightower ("Hightower" or the "Plaintiff"). On July 23, 2004, the Plaintiff filed an acceptance of the remittitur. Pursuant to Local Rule 6.3, the Defendants seek reconsideration of the portion of the Order that determined the attorneys' fees, claiming that the Court overlooked the attorney's fee limitations contained in the Prison Litigation Reform Act (PLRA). The Court assumes that the parties are familiar with the background of this case, as set forth in the Court's July 19, 2004 Order.

[9] I. DISCUSSION

[10] It is within the sound discretion of a district court judge to grant or deny a motion for reconsideration. Virgin Atlantic Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); Davidson v. Scully, 172 F. Supp. 2d 458, 462 (S.D.N.Y. 2001). Under Local Rule 6.3, a party may move for reconsideration and reargument by presenting "controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusions reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 256-57 (2d Cir. 1995); see also Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." U.S. v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000) (quoting Doe v. New York City Dept. of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)); accord Virgin Atlantic, 956 F.2d at 1255.

[11] In this case, the Defendants contend that the Court overlooked certain pertinent provisions of the PLRA when it determined the award of the Plaintiff's attorneys' fees, and that this omission was a "clear error of law." The PLRA governs the course of litigation when the plaintiff is incarcerated in a jail, prison, or correctional facility. 42 U.S.C. § 1997e(a) (2004). The Act prescribes procedural rules, contains jurisdictional provisions, and imposes limits on a plaintiff's recovery and attorney's fees in cases brought by prisoners. See 42 U.S.C. § 1997e(a)-(g); see, e.g., Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983; 152 L. Ed. 2d 12 (2002) (describing the mandatory nature of the PLRA's administrative exhaustion provision). In regard to attorney's fees, there are several provisions in the PLRA that limit the attorney's fee that may be awarded under the terms of 42 U.S.C. § 1988. The Court will now review these terms.

[12] First, the PLRA authorizes fees to be awarded only "to the extent that the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights. . . ." Id. § 1997e(d)(1). Second, fees are capped at an hourly rate of no more than 150% of the hourly rate established under 18 U.S.C. § 3006A. Id. § 1997e(d)(3).

[13] Finally, the statute directs that a portion of the plaintiff's judgment, not to exceed 25%, "be applied to satisfy the amount of attorney's fees awarded against the defendant." Id. § 1997e(d)(2).

[14] The Plaintiff argues that the Court should not reconsider the determination of attorneys' fees because neither party raised the issue of the PLRA on the initial motion. However, a court has discretion to reconsider an issue not initially raised in order to "correct a clear error or prevent manifest injustice." See Tenzer, 213 F.3d at 39. Here, with reasonable certainty, the failure to apply the attorney's fee provisions of the PLRA would be considered an abuse of discretion. See Johnson v. Breeden, 280 F.3d 1308, 1327 (11th Cir. 2002) (holding that a district court abused its discretion when it awarded attorney's fees and expenses without applying the PLRA).

[15] In addition, the Plaintiff argues that the PLRA should not be considered because the Plaintiff succeeded in a New York State common law battery cause of action as well as the civil rights cause of action. Plaintiff's argument is misplaced. Pursuant to 42 U.S.C. § 1988, the Plaintiff was entitled to attorneys' fees for prevailing only on the federal section 1983 claim. There would be no attorneys' fee on the New York State cause of action. Thus, the Court finds that it was clear error to overlook the terms of the PLRA in determining the award of attorneys fees. Accordingly, the Court will reconsider only that portion of the Order.

[16] Under the PLRA, the court determines whether fees were directly and reasonably incurred in proving a violation of the Plaintiff's rights and then applies a rate not greater than 150% of the current rate paid to C.J.A. attorneys. 42 U.S.C. § 1997e(d)(1). The Court's Order did address the issue of whether the hours were reasonably incurred and related to the successful litigation. (See Order at 20). Thus, the Court needs only to recalculate the maximum rate that may be awarded to the Plaintiff's attorneys. In the Eastern District of New York, C.J.A. attorneys are paid a rate of $90 a hour, which, when multiplied by 150%, computes to an hourly rate of $135.

[17] In addition, the PLRA requires that a portion of a plaintiff's judgment, "not to exceed 25 percent, shall be applied to satisfy the amount of attorney's fees awarded against the defendant." 42 U.S.C. § 1997e(d)(2); see Jackson v. Austin, 267 F. Supp. 2d 1059, 1071 (D. Kan. 2003). Consequently, the Court directs that 25 percent of the attorneys' fees awarded be paid from the proceeds of the Plaintiff's $165,000 judgment.

[18] II. CONCLUSION

[19] The Court now recalculates the fees to be awarded to all three of the Plaintiffs' counsel and also calculates the 25% portion that the Plaintiff is required to pay: Anthony Ofodile 393.60 hours @ $135 per hour = $ 53,136.00 Travel 78 hours @ $67.50 per hour = 5,265.00 ___________ Total $ 58,401.00 Less 20% reduction 11,680.20 ___________ Net Fee $ 46,720.80 ___________ Chidi Eze 138.04 hours @ $125 per hour = $ 17,255.00 Travel 49 hours @ $62.50 per hour = 3,062.50 ___________ $ 20,317.50 Less 20% reduction 4,063.50 ___________ Net Fee $ 16,254.00 ___________ William S. Robedee 14.25 hours @ $135 per hour = $ 1,923.75 Less 20% reduction 384.75 ___________ Net Fee $ 1,539.00 Total Attorneys' Fees $ 64,513.80 Plaintiff's 25% Portion $ 16,124.95

[20] With regard to the Plaintiff's prior acceptance of the remittitur of damages, because the Court finds that 25% of the Plaintiff's judgment shall be applied to satisfy a portion of the amount of attorneys' fees awarded against the Defendants, the Plaintiff's previous acceptance of the remittitur is vacated. The Plaintiff is requested to again decide whether to accept this revised remittitur. The Plaintiff is entitled to a new trial on the issue of damages, unless he agrees to the reduction of damages to a total of $165,000 less the sum of $16,124.95 that will be applied to the award of attorneys' fees.

[21] Based on the foregoing it is hereby

[22] ORDERED, that the section of the Court's July 19, 2004 Memorandum of Decision and Order that determined the Plaintiff's attorneys fees is VACATED; and it is further

[23] ORDERED, that the Clerk is directed to enter an amended judgment in favor of the plaintiff Ennis Hightower against the defendants Correction Officer Matthew Anderson, Correction Officer John Lagormarsino and Cpl. Gary McGuinness for compensatory damages in the sum of $100,000, and for punitive damages against the defendant Matthew Anderson in the sum of $15,000, for punitive damages against the defendant John Lagormarsino in the sum of $15,000, for punitive damages against the defendant Gary McGuinness in the sum of $35,000, for a total sum $165,000, together with the balance of attorneys fees of $48,388.85 and total costs in the sum of $2,934.31; and it is further

[24] ORDERED, that $16,124.95 of the Plaintiff's recovery in the amount of $165,000, be applied to satisfy that portion of the amount of attorneys' fees awarded against the Defendants; and it is further

[25] ORDERED, that the Defendants pay the balance of the Plaintiff's attorneys' fees in the amount of $48,388.85, as calculated above.

[26] ORDERED, that the Plaintiff may file with the Clerk of the Court on or before November 22, 2004, an acceptance of the remittitur of $165,000 less the sum of $16,124.95, representing his share of the attorneys' fees, leaving a net amount of $148,875.05 for the Plaintiff. In the event that the Plaintiff does not file an acceptance of the remittitur on or before November 22, 2004, a new trial solely on the issue of compensatory damages will commence on a date to be set by the Court.

[27] SO ORDERED.