Johnson v. The City of Syracuse

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ELIJAH JOHNSON,

Plaintiff, 5:16-cv-00622 (BKS/ML)

v.

POLICE OFFICER MAURO, POLICE OFFICER

LASHOMB, and POLICE OFFICER QUONCE, all sued

herein in their capacity as individuals,

Defendants.

Appearances:

For Plaintiff Elijah Johnson:

Fred Lichtmacher

The Law Office of Fred Lichtmacher PC

116 West 23rd Street, Suite 500

New York, New York 10011

For Defendant Joseph Mauro:

Kristen E. Smith

Corporation Counsel of the City of Syracuse

Christina F. DeJoseph

Todd M. Long

300 City Hall

Syracuse, New York 13202

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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Elijah Johnson brought this action under 42 U.S.C. § 1983, alleging, inter alia,

that Syracuse Police Officers Joseph Mauro (“Defendant”), William LaShomb, and Gordon

Quonce violated his Fourth Amendment rights during his July 6, 2014 arrest. A jury trial was

held from June 12, 2019 to June 24, 2019. The jury found Defendant Mauro liable for excessive

force, assessing $25,000 in compensatory damages, (Dkt. No 145), and $10,000 in punitive

damages. (Dkt. No. 148). Plaintiff now moves for attorney’s fees under 42 U.S.C. § 1988(b).

(Dkt. No. 159). Defendant opposes the motion and seeks to reduce Plaintiff’s fees. (Dkt. No.

163). For the reasons that follow, Plaintiff’s motion is granted in part and denied in part.

II. DISCUSSION1

A. Attorney’s Fees in § 1983 Cases

1. “Prevailing Party” Under § 1988

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).

“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.” Id. To “qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief

on the merits of his claim.” Farrar v. Hobby, 506 U.S. 103, 111 (1992).

Here, Plaintiff litigated this case to trial and obtained both compensatory and punitive

damages awards against Defendant Mauro. Plaintiff “has clearly prevailed on a ‘significant claim

affording some of the relief sought.’” Mendoza v. City of Rome, 162 F.R.D. 260, 263 (N.D.N.Y.

1995) (quoting Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989)).

Thus, the Court finds Plaintiff is a “prevailing party” under § 1988.

1 The Court assumes familiarity with the facts and procedural history of this case.

2. The Reasonable Hourly Rate

After the court finds that a party has prevailed, it must determine a reasonable fee to

award to prevailing party’s attorneys. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). The

lodestar approach is generally used to calculate reasonable attorney fees. “Under this approach,

the number of hours reasonably expended on the litigation is multiplied by a reasonable hourly

rate for attorneys and paraprofessionals.” Id.; 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.”). The prevailing

party is also entitled to attorney 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), aff’d sub nom. Restivo v. Hessemann, 846 F.3d 547

(2d Cir. 2017) (citing Valley Disposal, Inc. v. Cent. Vt. Solid Waste Mgmt. Dist., 71 F.3d 1053,

1060 (2d Cir. 1995)). Thus, the Court must arrive at a reasonable hourly rate for the attorneys

and paraprofessionals who worked on the case and “examine the hours expended by counsel and

the value of the work product of the particular expenditures to the client’s case.” Gierlinger v.

Gleason, 160 F.3d 858, 876 (2d Cir. 1998) (quoting DiFilippo, 759 F.2d at 235–36).

a. Out-of-District Rates

The Supreme Court has explained that district courts should use the “prevailing market

rates in the relevant community” in calculating the lodestar. 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 Concerned Citizens Neighborhood Ass’n v. Cty. of Albany &

Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008) (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) (“The Second Circuit ‘forum rule’ generally requires use of ‘the hourly

rates employed in the district in which the reviewing court sits in calculating the presumptively

reasonable fee.’” (quoting Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277, 290

(2d Cir. 2011))).

“[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 $575 for Fred Lichtmacher,2 $250 for

now-associate Sherry Wang,3 $80 for paralegal Shelly Chen, and $80 for “[l]egal

assistant/paralegal” Norman Chuk. (Dkt. No. 159-1, at 17–19). In support of his motion for fees,

Plaintiff has submitted the following: a declaration and list of expenses from lead attorney Fred

Lichtmacher, (Dkt. Nos. 159-5; 159-6), a declaration and list of expenses from associate Sherry

2 In the alternative, Plaintiff argues, without citation to caselaw, that if he is awarded Northern District rates, the rate

should [a]t a bare minimum . . . be adjusted for inflation,” shifting the high end of the range for in-district attorneys—

the “top rate”—from $350 to $418 per hour. (Dkt. 159-1, at 14). The Court declines to do so and elects instead to

survey rates granted in this district’s recent cases.

3 Wang has submitted records under two different hourly rates—for hours prior to and following her admission to the

bar. Wang’s first set of hours are billed at a paralegal rate of $90. (Dkt. No. 159-7).

Wang, (Dkt. Nos. 159-4; 159-7), declaration and time sheets from legal assistant Shelly Chen,

(Dkt. Nos. 159-11; 159-12), a declaration from legal assistant/paralegal Norman Chuk, (Dkt. No.

159-13), a declaration from civil rights attorney Gabe Harvis, (Dkt. No. 159-8), a declaration

from attorney Steven Halperin, (Dkt. No. 159-9), and a declaration from Plaintiff’s criminal

defense attorney Irene Flores. (Dkt. No. 159-10).

Plaintiff makes several arguments in support of his contention that that the Court should

deviate from the forum rule. First, he argues that there is an unwillingness among local attorneys

“to take on matters involving civil rights litigation,” that “there is obviously an overwhelming

need for out-of-district counsel in the Northern District,” and that “a fair rate should be paid” to

“not dissuade out-of-district counsel from taking these cases.” (Dkt. No. 159-1, at 11). In his

memorandum of law, Plaintiff lists 35 jury verdicts spanning from 1993 to present, including the

verdict from this case.4 (Dkt. No. 159-1, at 6–10). Ten of the cases resulted in plaintiff’s

verdicts,5 four of which were litigated by out-of-district counsel. (Id. at 10). Two of the ten

plaintiff’s verdicts resulted in nominal damages awards of $1.00, (id.), both of which were

litigated by in-district counsel. (Id.). Of the 35 cases, only “two of the Northern District cases

tried by in-district counsel resulted in significant verdicts.” (Id. at 10).

Defendant counters that Plaintiff does not “explain the parameters of the case search or

his analytical method for developing this list,” (Dkt. No. 163-4, at 15), and suggests that, even if

Plaintiff could not find an attorney in the Syracuse or Onondaga County area, that attorneys in

other counties within the Northern District “possess the requisite experience” to handle the case.

4 The first set of listed verdicts is a reproduction of the list attorney Jesse Ryder submitted with a fee application in

Grant v. City of Syracuse, 15-cv-0445, ECF No. 167, at 14–16 (Nov. 20, 2018).

5 The Court notes that one of the plaintiff’s verdicts, which was litigated by out-of-district counsel, was overturned

post-trial. See Ferreira v. City of Binghamton, No. 3:13-CV-107, 2017 WL 4286626, at *7, 2017 U.S. Dist. LEXIS

159141, at *18-20 (N.D.N.Y. Sept. 27, 2017).

(Dkt. No. 163-4, at 10 (quoting Yue Ping Sun v. Buffet Star of Vestal Inc., No. 14-cv-912, 2017

WL 11296886, at *2 (N.D.N.Y. June 21, 2017)6)). Defendant also notes that six of the ten cases

on Plaintiff’s list resulting in a plaintiff’s verdict were represented by in-district counsel. (Dkt.

163-4, at 15).7 Moreover, Defendant includes a chart of his own that lists § 1983 cases assigned

to this Court since Plaintiff initiated this lawsuit. (Dkt. No. 163-4, at 15–16). The chart also lists

the plaintiff’s attorneys who entered appearances in those cases, their practice locations, and the

number of other § 1983 cases in which those same attorneys have entered appearances. (Id.). Of

those nineteen cases, twelve include plaintiff’s lawyers who practice in the Northern District.

Finally, apart from his chart, Defendant also notes that the City of Syracuse has been a named

defendant “in multiple § 1983 lawsuits” litigated by in-district counsel since Plaintiff filed this

suit to further suggest that in-district lawyers are indeed bringing civil rights cases. (Id. at 17).

The Court agrees with Defendant that Plaintiff’s arguments—including his compilation

of case outcomes—fail to establish “the likelihood that use of in-district counsel would produce a

substantially inferior result.” Simmons, 575 F.3d at 176. As Defendant notes, most of the

plaintiffs’ verdicts on Plaintiff’s chart were in fact litigated by in-district counsel. (Dkt. No. 159-

1, at 9–10; Dkt. No. 163-4, at 15). Moreover, the Court is mindful that jury verdict amounts are

not necessarily the best measure of success in civil rights cases. The “facts and circumstances of

each case are different.” Trudeau v. Bockstein, No. 05-cv-1019, 2008 WL 3413903, at *6, 2008

U.S. Dist. LEXIS 61758, at *18 (N.D.N.Y. Aug. 8, 2008). A low jury award—without additional

6 No Lexis citation available.

7 The Court notes that, even in Grant, the case in which this chart was initially submitted, the court denied the

plaintiff’s attorneys their requested out-of-district rates. 357 F. Supp. 3d at 202 (“[A]s Charles A. Bonner has failed

to make a particularized showing to rebut the presumptive forum rule, the prevailing rates in the Northern District of

New York will be applied.”).

context—may not reflect the quality of lawyering; that is particularly so in the arena of

constitutional torts, where “a civil rights plaintiff seeks to vindicate important civil and

constitutional rights that cannot be valued solely in monetary terms.” City of Riverside v. Rivera,

477 U.S. 561, 574 (1986); see also Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1982) (“The

function of an award of attorney’s fees is to encourage the bringing of meritorious civil rights

claims which might otherwise be abandoned because of the financial imperatives surrounding the

hiring of competent counsel.”). Encouraging attorneys to bring low damages suits was,

furthermore, a motivation behind enacting § 1988. Rivera, 477 U.S. at 575 (“Because damages

awards do not reflect fully the public benefit advanced by civil rights litigation, Congress [in

enacting § 1988] did not intend for fees in civil rights cases, unlike most private law cases, to

depend on obtaining substantial monetary relief.”). Accordingly, the Court finds Plaintiff’s

compilation of jury awards does not overcome the presumption in favor of the forum rule.

Next, Plaintiff asserts that he hired Lichtmacher as a result of the efforts of his criminal

defense attorney, Flores, who contacted Lichtmacher’s office shortly after the events giving rise

to this litigation. (Dkt. No. 159-1, at 11). Flores states in her declaration that she believed

Plaintiff “needed outside counsel” because she was aware from her involvement in reforming

“the way the Onondaga County Assigned Counsel Program was run” that other lawyers in the

community were “afraid to ‘make waves’ for political reasons and/or wanted to continue to

receive assignments from local judges.” (Dkt. No. 159-10, at 3). Flores states that she read about

a previous civil rights case where the plaintiff was represented by California attorney Charles

Bonner but that she “could not find local attorneys of similar caliber in the Syracuse area.” (Id. at

2). She recalled reading about Lichtmacher’s successful representation of victims of police

beatings in New York City, and contacted him, (id. at 2–3); she believed that “a lawyer who was

not part of the Syracuse, New York community would not be afraid to go after the Syracuse

Police Department the way Mr. Lichtmacher did.” (Dkt. No. 159-10, at 3).

In addition, Lichtmacher declares that attorneys “from Syracuse Corporation Counsel

have repeatedly informed [him] that few attorneys from the Northern District will take civil

rights cases arising from Syracuse.” (Dkt. No. 159-1, at 12). This, according to Lichtmacher,

leads litigants to reach out “to out-of-district counsel.” (Id.) Lichtmacher also states that “he

ha[s] been informed by Corporation Counsel, that [his] firm and Mr. Bonner’s are adversaries in

a substantial portion of the cases [Corporation Counsel] defends.” (Id.; see also Dkt. No. 159-6,

at 5).

Defendant responds that the Flores declaration is “insufficient to satisfy Plaintiff’s

burden” to overcome the forum rule, (Dkt. No. 163-4, at 6), and that “Plaintiff offers not one

statement as to any affirmative action he had taken to engage local counsel within the entirety of

N.D.N.Y.” (Id. at 9). Defendant notes that the City of Syracuse has been named as a defendant in

at least six lawsuits filed by in-district counsel since Plaintiff filed the instant suit, (Dkt. No. 163-

4, at 17), and asserts that this shows that in-district lawyers are not hesitant to bring civil rights

cases against the City of Syracuse.

The Court agrees that this evidence does “not overcome the presumption in favor of the

forum rule.” Simmons, 575 F.3d at 177. Even accepting Plaintiff’s argument that attorneys within

Syracuse would be reticent to sue the police department, that does not explain why, as Defendant

points out, lawyers outside of Syracuse—but still within the Northern District—would be

reticent to do so. See Osterweil v. Bartlett, 92 F. Supp. 3d 14, 27 (N.D.N.Y. 2015) (explaining

that the plaintiff failed to “identify what specific expertise or skills his attorneys possessed that

attorneys within the Northern District of New York do not possess”).

Moreover, Plaintiff has not shown that local counsel possessing the requisite experience

were unwilling or unable to take the case. As Defendant points out, Flores offers only

conclusory statements about her efforts to contact in-district counsel before contacting

Lichtmacher. (Dkt. No. 159-10). Flores states that she “read about Alonzo Grant, who was also

wrongfully beaten by Syracuse Police Officers” and that Grant “had hired Charles Bonner – a

lawyer from California.” (Dkt. No. 159-10, at 2). Flores then states that she could not find

“attorneys of similar caliber [to Bonner] in the Syracuse area.” (Dkt. No. 159-10, at 2). But

Flores does not describe any affirmative steps she took to locate competent in-district counsel.

Flores also states she “remember[ed] reading about several victims of beatings by NYPD cops”

represented by Lichtmacher that “were awarded damages.” (Id.). She then states that she

“researched . . . and contacted [Lichtmacher].” (Id. at 2–3). Here, Plaintiff simply “appear[s] to

have assumed that local counsel could not have achieved a successful result in this action

without inquiring into the competence and expertise of attorneys within this district.” Grant, 357

F. Supp. 3d at 202; see also Doe v. Cornell Univ., No. 17-cv-0402, 2019 WL 1567535, at *7,

2019 U.S. Dist. LEXIS 62986, at *18–19 (N.D.N.Y. Apr. 11, 2019) (“Plaintiff has failed to

justify an award of out-of-district rates because he has not shown that litigating this case required

special expertise not available within this District.”); Monsour v. New York State Office for

People with Developmental Disabilities, No. 13-cv-00336, 2018 WL 3349233, at *18, 2018 U.S.

Dist. LEXIS 113041, at *48–49 (N.D.N.Y. July 9, 2018) (“Plaintiff does not identify the in-

district lawyers he contacted or detail the efforts he expended to retain local counsel with the

ability or willingness to take on his case.”).

While the Court finds that Plaintiff undoubtedly benefitted from Lichtmacher’s fine work

in this case, Plaintiff has “failed to make a particularized showing to rebut the presumptive forum

rule.” Grant, 357 F. Supp. 3d at 202; see also Simmons, 575 F.3d at 176. The Court next

considers the reasonable rates for each member of Plaintiff’s legal team requesting fees, applying

Northern District rates.

b. Plaintiff’s Legal Team’s Reasonable Rates

A review of cases in this District indicates that the following hourly rates (or rate ranges)

are reasonable: $275–$350 for experienced partners;8 $165–$200 for junior associates;9 and $90

for paralegals.10

i. Fred Lichtmacher

The Court finds that the result here—a compensatory damages award of $25,000 along

with a punitive damages award of $10,000—indicates that Plaintiff’s attorneys obtained an

excellent result. Hensley, 461 U.S. at 435 (“Where a plaintiff has obtained excellent results, his

attorney should recover a fully compensatory fee.”); see also Kassim v. City of Schenectady, 415

F.3d 246, 253 (2d Cir. 2005) (“The Supreme Court has consistently stressed the importance of

the degree of the plaintiff’s success in the litigation as a factor affecting the size of the fee to be

awarded.”). To reflect his commendable work, Lichtmacher will be “compensated at the rate of

8 See, e.g., Doe, 2019 WL 1567535, at *7, 2019 U.S. Dist. LEXIS 62986, at *18; Cruz v. Sal-Mark Restaurant Corp.,

No. 17-cv-0815, 2019 WL 355334, at *7, 2019 U.S. Dist. LEXIS 13529, at *20 (N.D.N.Y. Jan. 28, 2019) (noting that

“[r]ecent cases in the Northern District have upheld hourly rates between $250 and $350 for partners”) (quoting

Deferio v. City of Syracuse, No. 16-cv-0361, 2018 WL 3069200, at *3, 2018 U.S. Dist. LEXIS 103596, at *9

(N.D.N.Y. June 21, 2018)); Parish v. Kosinski, 17-cv-0344, 2018 WL 1475222, at *5, 2018 U.S. Dist. LEXIS 20134,

at *16–17 (N.D.N.Y. Feb. 5, 2018) (granting a rate of $350 per hour for partners); Pope v. Cty. of Albany, No. 11-cv-

0736, 2015 WL 5510944, at *10, 2015 U.S. Dist. LEXIS 123379, at *27 (N.D.N.Y. Sept. 16, 2015) (awarding $350

to a partner).

9 See, e.g., Daniel E. W. v. Berryhill, No. 17-cv-0271, 2019 WL 1986538, at *5, 2019 U.S. Dist. LEXIS 75781, at *14

(N.D.N.Y. May 6, 2019) (“Recent cases in the Northern District have upheld hourly rates between . . . $165 and $200

for associates.” (quoting Stevens v. Rite Aid Corp., No. 13-cv-0783, 2016 WL 6652774, at *3, 2016 U.S. Dist. LEXIS

159468, at *8 (N.D.N.Y. July 6, 2016))); Curves Int’l, Inc. v. Nash, No. 11-cv-0425, 2013 WL 3872832, at *5, 2013

U.S. Dist. LEXIS 104095, at *15 (N.D.N.Y. July 25, 2013) (finding $170 for attorneys with less than four years of

experience to be reasonable); Zalewski v. T.P. Builders, Inc., Nos. 10-cv-0876, 2012 WL 5880327, at *3, 2012 U.S.

Dist. LEXIS 166263, at *13 (N.D.N.Y. Nov. 21, 2012) (awarding, in a seven-year-old case, $170 per hour for attorney

with under four years of experience).

10 See, e.g., Deferio, 2018 WL 3069200, at *6, 2018 U.S. Dist. LEXIS 103596, at *17.

$350 per hour,” a rate on the “high end of the reasonable rates within the Northern District.”

Grant, 357 F. Supp. 3d at 202 (awarding out-of-district attorney Northern District rates at $350

per hour in a recent excessive force case).

ii. Sherry Wang

As a preliminary matter, Plaintiff has requested that Wang’s paralegal rate be set at $90.

(Dkt. 157-7, at 4). As noted above, this requested rate is in keeping with the District’s reasonable

rates. Defendant does not oppose the request. (Dkt. No. 164-4, at 19). Thus, $90 per hour is an

appropriate rate for Wang’s paralegal work.

Next, the Court must decide what to award Wang for the hours she devoted to the case

following her admission to the bar. Wang requests $250 per hour for her time post-admission.

(Dkt. No. 159-7, at 4). Defendant counters that Wang’s hours should be compensated at $120 per

hour, at the “low end” of the range for attorneys with under four years of experience. (Dkt. No.

163-4, at 18).

Wang was admitted to the New York State bar in February 2019, (Dkt. No. 159-7, at 2),

meaning that she has less than one year of post-admission experience as an attorney. Wang states

that she began working on this case “since [the] first day of [her] employment” with

Lichtmacher’s firm. (Id.). Although Wang requests the $90 per hour paralegal rate for all the

time spent prior to her admission, her declaration states that she made substantive contributions

to the case during that time, including “play[ing] a large role” drafting the summary judgment

opposition, responding to Defendants’ statement of material facts, and opposing Defendants’

motions in limine. (Id.). Moreover, Wang states that she “worked on discovery,” and otherwise

helped “in preparation for trial.” (Id.). The Court has reviewed the billing records in this case,

considered Wang’s experience, and reviewed Northern District fee awards to associates with

under four years’ experience. See supra n.9, at 10. Taking the foregoing into consideration, the

Court will award $170 per hour for Wang’s associate hours on this case.

iii. Shelly Chen

Plaintiff has requested Chen’s hourly rate be set at $80 per hour. According to her

declaration, Chen “was the office manager and a legal assistant” in Lichtmacher’s office. (Dkt.

No. 159-11, at 1). Defendant argues that much of the work done by Chen counts as “secretarial

work” that is not “compensable labor under § 1988.” (Dkt. No. 163-4, at 15). The Court agrees in

part. Having reviewed Chen’s time records, the Court finds that some of Chen’s work is indeed

better-categorized as “clerical tasks” not compensable under § 1988. See Dotson v. City of

Syracuse, No. 04-cv-1388, 2011 WL 817499, at *26, 2011 U.S. Dist. LEXIS 20374, at *72–73

(N.D.N.Y. Mar. 2, 2011), aff’d, 549 F. App’x 6 (2d Cir. 2013). Defendant does not dispute that,

to the extent the Court categorizes the hours as “paralegal work,” $80 per hour is appropriate.

(Id. at 19). Accordingly, the Court awards Plaintiff fees for Chen’s work at the rate of $80 per

hour but will reduce Chen’s hours by 10 percent to account for her non-compensable clerical

work. See Hines v. City of Albany, 613 F. App’x 52, 54–55 (2d Cir. 2015) (“We have held that in

dealing with items that are “excessive, redundant, or otherwise unnecessary . . . the [district]

court has discretion simply to deduct a reasonable percentage of the number of hours claimed as

a practical means of trimming fat from a fee application.” (quoting Kirsch v. Fleet Street, Ltd.,

148 F.3d 149, 173 (2d Cir.1998) (alteration in original) (internal quotation marks omitted)).

iv. Norman Chuk

Plaintiff requests that Chuk’s hourly rate be set at $80 per hour. (Dkt. No. 159-1). Chuk is

a “legal assistant/paralegal” in Lichtmacher’s office and worked 8.25 hours on this case. (Dkt.

No. 159-13, at 1). Defendant argues that Chuk’s work is clerical and should not be characterized

as paralegal work, (id.), and further argues that Chuk’s November 2017 time entry, (Dkt. No.

159-13, at 1), is “oddly timed” because it reflects “trial prep work in November 2017,” well over

a year prior to trial, and that his later entry is “vague[].” (Dkt. No. 163-4, at 19). The Court

agrees as to Chuk’s first entry but disagrees as to the second, which the Court finds properly

categorized as paralegal work. As such, the first entry will be excluded from Plaintiff’s hours and

the one remaining entry will be awarded at the requested rate of $80 per hour.

3. Reasonable Number of Hours

“The fee applicant also bears the burden of documenting the hours spent by counsel, and

the reasonableness thereof.” Stevens v. Rite Aid Corp., No. 13-cv-783, 2016 WL 6652774, at *4,

2016 U.S. Dist. LEXIS 159468, at *9 (N.D.N.Y. July 6, 2016). In determining a reasonable fee,

“the district court should exclude . . . hours that were not reasonably expended, including hours

that are excessive, redundant, or otherwise unnecessary.” Osterweil, 92 F. Supp. 3d at 28 (citing

Hensley, 461 U.S. at 434) (internal quotations omitted). As noted above, “[i]n excluding hours

that were not reasonably expended, the court has discretion simply to deduct a reasonable

percentage of the number of hours claimed as a practical means of trimming fat from a fee

application.” Id. (citing Kirsch, 148 F.3d at 173 (internal quotations omitted)).

a. Clarity of Timekeeping Records

First, Defendant argues that Plaintiff’s hours should be discounted because “the billing

records of Plaintiff’s counsel and his staff are replete with vague and ambiguous time entries.”

(Dkt. No. 163-4, at 21). In reply, Plaintiff argues—without citation—that Defendant’s argument

“overlooks cases where fee awards have been granted previously” and that to “demand more

would create extra work for attorneys, which doubtless Defendant[] would object to their being

compensated for.” (Dkt. No. 166, at 2). The Court agrees with Defendants that some of the

descriptions lack particularity. However, having carefully reviewed the billing descriptions, the

hours claimed for those descriptions, and the timing of the work claimed, and based on the

Court’s familiarity with this case and counsel’s work, the Court finds that the hours expended

appear to be reasonable and adequately documented.

b. Excessiveness of Time Records

Defendant argues that Plaintiff’s billing is, at times, “duplicated and excessive.” (Dkt.

No. 163-4, at 18). Specifically, Defendant emphasizes the 51.7 hours expended on Plaintiff’s

response to defendants’ summary judgment motion and the 62.4 hours spent on Plaintiff’s fee

motion. (Dkt. No. 163-4, at 21–23). Plaintiff responds that the cases cited by Defendant are

inapposite. (Dkt. No. 166, at 4–5). The Court agrees with Plaintiff and will not reduce hours

based on the time expended on either the opposition to summary judgment or the fees motion.

i. Summary Judgment Motion

With respect to the summary judgment motion, Defendant cites Cover v. Potter, No. 05-

cv-7039, 2008 WL 4093043, at *7, 2008 U.S. Dist. LEXIS 66753, at *18–19 (S.D.N.Y. Aug. 29,

2008), for the proposition that Plaintiff’s hours expended in opposition to summary judgment

motion are excessive. In Cover, the attorney seeking fees billed 87.25 hours for summary

judgment, over 50 percent more than Plaintiff seeks here. Id., 2008 WL 4093043, at *7, 2008

U.S. Dist. LEXIS 66753, at *19. And in Cover, fees were ultimately only reduced by 10%. Id..

Accordingly, Potter is unhelpful in deciding this issue.11

Here, the Court notes that Defendant’s summary judgment submissions exceeded 900

pages. See Pastre v. Weber, 800 F. Supp. 1120, 1126 (S.D.N.Y. 1991) (finding 128.75 hours

expended to oppose summary judgment was reasonable where there was a “64–page opening

11 Defendant also cites Dotson v. City of Syracuse, No. 04-cv-1388, 2011 WL 817499, at *25, 2011 U.S. Dist. LEXIS

20374, at *67–68 (N.D.N.Y. Mar. 2, 2011), aff’d, 549 F. App’x 6 (2d Cir. 2013). That case is likewise unpersuasive.

There, the court found that 115.3 hours spent in “opposition to defendants’ summary judgment motion” was excessive.

Id. That is over twice the time Plaintiff claims in fees for his time spent opposing Defendant’s summary judgment

motion in this case.

memorandum of law, affidavits totaling 42 pages . . . with an additional 482 pages of exhibits”);

see also Rivera, 477 U.S. at 580–81 n.11 (explaining that a defendant “cannot litigate tenaciously

and then be heard to complain about the time necessarily spent by the plaintiff in response.”

(quoting Copeland v. Marshall, 641 F.2d 880, 904 (D.C.Cir. 1980))). Thus, the Court declines to

reduce Plaintiff’s hours for the time expended opposing Defendant’s motion for summary

judgment.

ii. Fees Motion

With respect to Plaintiff’s fee motion, the Court also finds Plaintiff’s hours expended

reasonable. Defendant argues that the absolute time—62.4 hours—spent preparing the fee

motion is excessive. (See Dkt. No. 163-4, at 22–23). The Court finds that the more appropriate

inquiry is, as Plaintiff argues, to examine the hours expended as a proportion of the total time

claimed in the fee application.12 “The Second Circuit has upheld fee awards where the time spent

on the fee application was up to 24% of the total time claimed . . . [and] [o]ther courts within this

Circuit have awarded fee application awards in the range of 8 to 24 percent of the total time

claimed.” Nat. Res. Def. Council, Inc. v. Fox, 129 F. Supp. 2d 666, 675 (S.D.N.Y. 2001)

(quoting Davis v. City of New Rochelle, 156 F.R.D. 549, 561 (S.D.N.Y. 1994)). Here, according

to Plaintiff, his request amounts to 11 percent of the total time claimed.13 See id. (upholding a fee

12 Moreover, the Court finds the cases cited by Defendant distinguishable from the circumstances here. See Murray v.

Mills, 354 F.Supp.2d 231, 241 (E.D.N.Y.2005) (reducing fees requested for fee application from 150 hours where the

case settled after three months and the plaintiff’s “billing statement contain[ed] numerous instances of excessive and

unreasonable billing”); Curtis v. City of Kingston, No. 114-cv-0951, 2016 WL 1223471, at *6, 2016 U.S. Dist. LEXIS

44643, at *16 (N.D.N.Y. Mar. 28, 2016) (reducing fees requested for fee application where “the attorneys’ fees motion

represent[ed] almost half of the requested fees”); Access 4 All, Inc. v. 135 W. Sunrise Realty Corp., No. 06-cv-5487,

2008 WL 4453221, at *12, 2008 U.S. Dist. LEXIS 91674, at *35–36 (E.D.N.Y. Sept. 30, 2008) (finding 19.4 hours

spent on drafting a fee application to be excessive and reducing it by half to where, unlike here, the case was litigated

for less than a year); Luessenhop v. Clinton Cty., 558 F. Supp. 2d 247, 270–71 (N.D.N.Y. 2008), aff’d, 324 F. App’x

125 (2d Cir. 2009) (reducing fees requested for fee application, which were 22 percent of the total hours requested,

from 62 hours to 30 where a portion of plaintiff’s fee application had been “replicat[ed]” from prior fee applications)

13 By the Court’s calculation, including the time Plaintiff spent replying to Defendant’s opposition to this motion, (see

Dkt. No. 166, at 5), the fee application actually comprises only approximately 9.4 percent of the total litigation.

request for 124.65 hours spent preparing a fee application, which amounted to “14.5 percent of

the total time compensated”). Accordingly, the Court finds Plaintiff’s claim of 62.4 hours to be

reasonable.14

iii. Criminal Proceedings

Defendant argues that the “approximately 8 hours related to Plaintiff’s criminal defense

must be excluded in their entirety” because “[a]ttorneys’ fees incurred for a plaintiff’s defense in

prior criminal proceedings are not compensable under § 1988.” (Dkt. No. 163-4, at 24). Plaintiff

counters that it would “be impossible to try this matter without detailed knowledge of what

transpired at the criminal trial.” (Dkt. No. 166, at 5). The Court agrees with Plaintiff.

The cases cited by Defendant involve attorneys that worked on an underlying criminal

case before bringing § 1983 actions. (Dkt. No. 163-4, at 24 (citing McKever v. Vondollen, 681 F.

Supp. 999, 1003 (N.D.N.Y. 1988) (explaining that plaintiff was not entitled to fees for

“plaintiff’s defense in a prior criminal proceeding[]”))). Here, Plaintiff seeks fees for work

related to understanding the contours of his criminal proceedings in furtherance of this litigation,

not for representation during Plaintiff’s criminal proceedings. (See Dkt. No. 159-5, at 7).

Accordingly, the Court declines to exclude this time.

i. Travel Time

Defendant argues that “[b]ecause Plaintiff chose to hire out-of-district counsel rather than

local counsel, he should not be entitled to attorneys’ fees for travel time. (Dkt. No. 163-4, at 23).

Plaintiff, however, has “asked for no such fees” and only included them “in his Time Sheets to

be comprehensive.” (Dkt. No. 166, at 4). Accordingly, Defendant’s argument is without merit.

14 The Court notes that it adds 4.1166 hours to Lichtmacher’s hours and 5.6166 hours to Wang’s hours to reflect their

time expended on the fee motion reply. (Dkt. No. 166, at 5).

c. Plaintiff’s Degree of Success

Defendant argues that Plaintiff is not entitled to fees for “severable unsuccessful claims”

(Dkt. No. 163-4, at 24–25 (quoting Green v. Torres, 361 F.3d 96, 98 (2d Cir. 2004) (per

curiam))). Defendant further argue that “Plaintiff was successful in obtaining a jury verdict

against only . . . Sgt. Mauro on his . . . excessive force claim.” (Dkt. No. 163-4, at 25). Plaintiff

counters that the claims here “involved a common core of facts and are based on related legal

theories making it difficult to divide the hours expended on a claim-by-claim basis.” (Dkt. No.

166, at 3). The Court agrees with Plaintiff.

To be sure, Defendant is correct that “where a prevailing plaintiff has succeeded on only

some of his claims, an award of fees for time expended on unsuccessful claims may not be

appropriate.” Rivera, 477 U.S. at 568. In these situations, the Court “should consider whether or

not the plaintiff’s unsuccessful claims were related to the claims on which he succeeded, and

whether the plaintiff achieved a level of success that makes it appropriate to award attorney’s

fees for hours reasonably expended on unsuccessful claims.” Id.; see also Hensley, 461 U.S. at

435 (“Where a plaintiff has obtained excellent results, his attorney should recover a fully

compensatory fee. Normally this will encompass all hours reasonably expended on the litigation,

and indeed in some cases of exceptional success an enhanced award may be justified. In these

circumstances the fee award should not be reduced simply because the plaintiff failed to prevail

on every contention raised in the lawsuit.”).

When a plaintiff succeeds on only some of his claims for relief, the Court considers two

factors. First, whether “the plaintiff fail[ed] to prevail on claims that were unrelated to the claims

on which he succeeded.” Grant, 357 F. Supp. 3d at 204 (quoting Hensley, 461 U.S. at 434). And

second, whether “the plaintiff achieve[d] a level of success that makes the hours reasonably

expended a satisfactory basis for making a fee award.” Id. (quoting Hensley, 461 U.S. at 434). If

Plaintiff’s work was “devoted generally to the litigation as a whole, making it difficult to divide

the hours expended on a claim-by-claim basis . . . 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.” Id. at 205 (quoting Hensley, 461 at 435).

Here, the Court finds that Plaintiff “achieved a degree of success commensurate with the

hours expended on the litigation by their attorneys.” Id. Grant, where the court declined to

discount the plaintiff’s attorneys’ fees on this basis, is instructive. Id. There, as here, all of

Plaintiff’s “claims arose from the same events,” a use of force incident by law enforcement.

Moreover, here, as in Grant, Plaintiff Johnson was not successful on “all [of his] claims,

including those claims against” LaShomb, Quonce, and “the Monell claim against the City of

Syracuse,” which, in this case, Plaintiff voluntarily dismissed. See id. Nevertheless, the Court

finds that the claims litigated “in this action . . . and the work required by [Plaintiff’s] attorneys

with respect to each of those claims, were interrelated with one another” and are best not viewed

“as a series of discrete claims.” Id. Moreover, the Court notes that here, unlike in Grant, the jury

awarded punitive damages against Defendant Mauro. (Dkt. No. 145, at 3). Accordingly, the

Court declines to reduce Plaintiff’s fee because he did not prevail on each of his claims.15

d. Costs

In his fee application, Plaintiff requests reimbursement for “expenses” in the amount of

$2,997.18. (Dkt. No. 159-1). Defendant argues that, because Plaintiff failed to “submit a bill of

15 Citing Deferio, 2018 WL 3069200, 2018 U.S. Dist. LEXIS 103596, Defendant argues that any fee award should be

significantly reduced based on Plaintiff’s failure to prevail on his Monell claim against the City of Syracuse. (See Dkt.

No. 163-4, at 26). Defendant’s reliance on Deferio is misplaced. There, unlike here, the crux of the plaintiff’s action

centered around a Monell claim—in Deferio, the plaintiff directly challenged an official municipal policy. See id.,

2018 WL 3069200, at *1, 2018 U.S. Dist. LEXIS 103596, at *2 (reducing fee award “to account for Plaintiff’s lack

of success as to his Monell claims” and observing that “a priority of Plaintiff’s litigation [had been] to secure municipal

liability”). Here, by contrast, the central issues revolved around the specific use of force incident.

costs as required by the Local Rules,” his “request for taxable costs should be denied.” (Dkt. No.

163-4, at 27–28). Plaintiff counters that no such bill is required. (Dkt. No. 166, at 1). The Court

agrees with Plaintiff.

“Unless a federal statute, these rules, or a court order provides otherwise, costs—other

than attorney’s fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54.

“[A]ttorney’s fees awards include those reasonable out-of-pocket expenses incurred by attorneys

and ordinarily charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d

Cir. 1998) (quoting United States Football League v. Nat’l Football League, 887 F.2d 408, 416

(2d Cir.1989)). Attorneys’ expenditures on litigation are unnecessary and non-compensable

when “they exceed the minimum that a reasonable paying client would pay absent a fee-shifting

arrangement.” Grant, 357 F. Supp. 3d at 208 (quoting Amerisource Corp. v. Rx USA Intern Inc.,

2010 WL 2160017, at *15, 2010 U.S. Dist. LEXIS 52424, at *46 (E.D.N.Y. 2010)). The Second

Circuit has identified “out-of-pocket disbursements for items such as photocopying, travel, and

telephone costs are generally taxable under § 1988 and are often distinguished from

nonrecoverable routine office overhead, which must normally be absorbed within the attorney’s

hourly rate.” Id. (quoting Kuzma v. Internal Revenue Service, 821 F.2d 930, 933–34 (2d Cir.

1987)). Courts have construed these categories of expenses as “non-exhaustive.” Deferio, 2018

WL 3069200, at *9, 2018 U.S. Dist. LEXIS 103596, at *26–27 (N.D.N.Y. June 21, 2018).

Here, the Court finds that the supporting documentation supplied by Plaintiff “evidences

reasonable out-of-pocket expenses recoverable pursuant to 42 U.S.C. § 1988” Grant, 357 F.

Supp. 3d at 208. The requested expenses include a filing fee, service of process fees, mailing

expenses, deposition transcript expenses, obtaining and reviewing medical records, and

investigator fees. (Dkt. No. 159-3, at 7–8; Dkt No. 159-6). The Court finds that Plaintiff’s

requested expenses are the kind a “reasonable paying client would pay absent a fee-shifting

arrangement.” Grant, 357 F. Supp. 3d at 208. Accordingly, the Court grants Plaintiff's request

for $2,997.18 in costs.

4. Final Calculation

In sum, after carefully considering all the relevant factors, adjusting the requested rates

and the requested hours as discussed above, the Court finds Plaintiff is entitled to attorney’s fees

in the total amount of $175,289.50, broken down as follows:

ree

In addition, Plaintiff is awarded $2,997.18 in costs and expenses for a total of $178,286.68.

Wl. CONCLUSION

For these reasons, it is hereby

ORDERED that Plaintiff's Motion for Reasonable Attorneys’ Fees and Costs (Dkt. No.

159) is GRANTED in part and DENIED part; and it is further

ORDERED that Plaintiff is awarded a total of $175,289.50 in attorney’s fees and

$2,997.18 in costs and expenses for a total of $178,286.68.

IT IS SO ORDERED. brerr of kK nannies

CA

Dated: November 7, 2019 Brenda K. Sannes

U.S. District Judge

20