GARY SMITH, Plaintiff, -against- WETTENSTIN, DEPUTY WARDEN, et al., Defendants.

02 Civ. 5806 (RCC) (MHD)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2003 U.S. Dist.

December 15, 2003, Decided
December 16, 2003, Filed


PRIOR HISTORY: Smith v. Wettenstin, 2003 U.S. Dist. (S.D.N.Y., Oct. 23, 2003)

DISPOSITION: [*1] Costs and fees awarded to Plaintiff.


COUNSEL: Gary Smith, PLAINTIFF, Pro se, Altona, NY USA.

For Gary Smith, PLAINTIFF: Michael C Rakower, Legal Aid Society Prisoners' Rights Project, New York, NY USA.

For Wettenstin, Thompson, Augustus, Sullivan, Bennett, Madruga, Moore, Benston, Jackson, DEFENDANTS: John A Compton, Jr, Corporation Counsel of the City of New York, New York, NY USA.

JUDGES: MICHAEL H. DOLINGER, UNITED STATES MAGISTRATE JUDGE.

OPINIONBY: MICHAEL H. DOLINGER

OPINION:
MEMORANDUM & ORDER

MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE:
By memorandum and order dated October 23, 2003, this court concluded that defendants had failed, over a period of time, to meet their discovery responsibilities, and had failed as well to comply with a prior discovery order. The court accordingly directed that defendants comply in certain specific respects. Having also found that their opposition to plaintiff's original requests, to his subsequent application to compel and, finally, to his motion for sanctions was not substantially justified, the court awarded plaintiff [*2] the expenses of his motion, including reasonable attorney's fees.
Plaintiff's counsel has submitted his fee application, accompanied by supporting time records. (See Declaration of Michael C. Rakower, Esq. in Support of Petition dated Nov. 4, 2003 ("Rakower Decl."); Reply Declaration of Michael C. Rakower dated Nov. 18, 2003 ("Reply Decl.")). He claims to have spent 138.2 hours on discovery issues arising from defendants' failure to produce documents, starting with entries on August 9, 2003, and continuing through the briefing of the fee application, on November 18, 2003. Based on that billing and a claimed hourly rate of $ 295.00, he seeks a fee award of $ 40,769.00. Plaintiff also documents out-of-pocket expenses totaling $ 263.76. n1

n1 Plaintiff's attorney misstates the total costs incurred between August 9, 2003 and November 2, 2003 as $ 95.63. (See Rakower Decl. at P 1). Counsel's time records reflect actual costs of $ 202.13 for this time period.

Defendants oppose most of plaintiff's attorney's [*3] fee application. They contend: (1) that he should be compensated only for the expenses of drafting the sanctions motion that he filed in October 2003 and not any of the earlier time spent on seeking to obtain compliance by defendants; (2) that his hourly rate should be reduced by more than half; (3) that the time spent on ministerial tasks should either be excluded or compensated at a still lower rate; and (4) that the total hours spent on the motion were unnecessary and should be drastically reduced. (See Defendants' Memorandum of Law in Opposition at pp. 1-2).
ANALYSIS
We address the issues in the order in which defendants raise them, after first summarizing the general legal standards. We conclude from our analysis that plaintiff should be awarded $ 20,950.00 in fees and $ 263.76 in expenses.
A. The Governing Criteria
When assessing fee applications under the discovery rules, the courts look to the long-accepted lodestar method of determining attorneys' fees. See, e.g., Pierce v. Underwood, 487 U.S. 552, 557, 565, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1989); SEC v. Thrasher, 1995 U.S. Dist. LEXIS 13427, 1995 WL 552704, at *4 (S.D.N.Y. Sept. 18, 1995); Cathay Pac. Airways, Ltd. v. Fly & See Travel, Inc., 1991 U.S. Dist. LEXIS 17206, 1991 WL 258767, at *1-2 (S.D.N.Y. Nov. 27, 1991). Under the lodestar analysis, "the number of hours reasonably expended on the litigation is multiplied by a reasonable hourly rate for attorneys and paraprofessionals." Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992), cert. denied, 506 U.S. 1053 (1993). Accord Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992). We briefly summarize the criteria applicable to each aspect of the analysis.
To determine the number of hours that should be compensable, the court must initially look to the amount of time spent on each category of tasks, as documented by contemporaneous time records of the moving party's attorney. See, e.g., New York Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1142-43 (2d Cir. 1983). The court must then determine how much of that time was "reasonably" expended. "In calculating the number of 'reasonable hours,' the court must look to its own familiarity with the case and its experience with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties. [*5] " Clarke, 960 F.2d at 1153 (quoting Di Filippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985)). If the court concludes that portions of the expended time were not reasonably necessary to achieve the successful result obtained by the movant, it should reduce the time for which compensation is awarded. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 434-35, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Clarke, 960 F.2d at 1153; Cowan v. Prudential Ins. Co. of America, 935 F.2d 522, 525 (2d Cir. 1991). Such reductions are appropriate to account for work on claims or issues unrelated to those on which the movant ultimately prevailed, see, e.g., Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 558-61, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986); Mikes v. Straus, 274 F.3d 687, 705 (2d Cir. 2001), or for plainly inefficient or duplicative work. See, e.g., Hensley, 461 U.S. at 434; Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 98 (2d Cir. 1997).
As for the appropriate hourly rates, the court should look to the rates "prevailing in the community for similar services by lawyers of reasonably [*6] comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896 n.11, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984) (citing cases); Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir. 1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990). In meeting this requirement, the fee applicant bears the burden of proof, see, e.g., Blum, 465 U.S. at 896 n.11; Chambless, 885 F.2d at 1059, although the court may also take judicial notice of prevailing rates in its own legal community. See, e.g., Miele v. New York State Teamsters Conf. Pension & Retirement Fund, 831 F.2d 407, 409 (2d Cir. 1987). Accord Chambless, 885 F.2d at 1059.
In making findings with respect to the proper hourly rate, the court should look to fees charged by attorneys comparably situated to those representing the movant. Thus, if the movant is represented by a small or medium-sized firm, the appropriate rates are those typically charged by such firms, whereas a movant may obtain higher compensation rates if represented by a large urban firm, since such firms typically charge [*7] more per hour to cover a higher overhead. See, e.g., Chambless, 885 F.2d at 1058-59; Huertas v. East River Housing Corp., 662 F. Supp. 282, 286 (S.D.N.Y. 1986), vacated on other grds., 813 F.2d 580 (2d Cir. 1987).
Although the lodestar figure is the presumptively appropriate amount to award, there may be circumstances that justify an adjustment. For example, enhancement may be justified by significant delay in obtaining an award or by the court's finding that the attorney assumed a substantial and provable risk of loss. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 283-84, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 730-31, 97 L. Ed. 2d 585, 107 S. Ct. 3078 (1987).
B. The Temporal Scope of the Award
The temporal scope of the attorney's time for which we authorized compensation in this case is not limited to the period of counsel's preparation of a sanctions motion. Plaintiff encountered difficulties months before in obtaining compliance with his document requests. This led to letter applications to the court commencing in early August 2003 in which plaintiff sought, in effect, Rule 37(a) relief. The parties [*8] then attended a conference on September 5, 2003, at which the court directed defendants to provide certain materials and to make a showing of burden with respect to other matters. Further delay and eventual substantial non-compliance by defendants led to a sanctions motion by plaintiff, which culminated in the court's October 23 rulings, including its fee award.
This sequence amply justifies our holding that the work necessitated by defendants' discovery violations commenced in August 2003. Indeed, the sanctions motion would not have been appropriate absent prior efforts by plaintiff to obtain compliance, including its earlier request for court intervention. That predicate work is therefore properly compensable.
C. The Hourly Rate
Plaintiff's attorney seeks an award keyed to an hourly rate of $ 295.00. (See Rakower Decl. at P 10). This figure is somewhat excessive on the current record.
Plaintiff's attorney has had four years of legal experience since graduating from the University of Virginia School of Law in 1999. (See id. at PP 4-8). Although defendants question the relevance of that experience and criticize his qualifications to litigate a civil rights case, there [*9] is no question that most of his prior experience is pertinent. There is also no question that he has performed ably and enthusiastically on behalf of his client.
Nonetheless, he is, in fact, a fairly junior single practitioner. Although he alludes to hearsay information about how his former large law firm bills for work performed by junior associates (see Rakower Decl. at P 13; Reply Decl. at PP 12-13), that is not directly relevant. See, e.g., In re Texaco Inc. Shareholder Derivative Litigation, 123 F. Supp. 2d 169, 174 (S.D.N.Y. 2000) (noting that attorney representing himself, without the involvement of his employing law firm, could not seek fee award at his big firm rate of $ 360.00 an hour). As noted, we look to rates charged by attorneys of comparable skill and experience in handling similar cases in similar settings. As a single practitioner, he does not face the overhead of the larger firms and hence his compensation is -- all other things being equal -- appropriately set at a lower rate.
Plaintiff does not offer any meaningful data on what fees are charged in this district in comparable circumstances, and we are therefore required to turn to case law [*10] in this district. While hardly yielding a consistent result, we view recent precedent and somewhat more ancient case law as justifying an hourly rate of $ 250.00 for a relatively junior solo practitioner. See, e.g., McDonald v. Pension Plan of NYSA-ILA Pension Trust Fund, 2002 U.S. Dist. LEXIS 15908, 2002 WL 1974054, at *4 (S.D.N.Y. Aug. 27, 2002) (awarding solo practitioner with 22 years of experience $ 325.00 an hour); Bick v. City of New York, 1998 U.S. Dist. LEXIS 5543, 1998 WL 190283, at *29 (S.D.N.Y. Apr. 21, 1998) (noting five years ago that $ 250.00 an hour is a reasonable rate for solo practitioners with twelve years experience); O'Rourke v. Pitney Bowes, Inc., 1997 U.S. Dist. LEXIS 17929, 1997 WL 716117, at *4 (S.D.N.Y. Nov. 12, 1997) (approving $ 225.00 an hour for inexperienced solo practitioner); Loper v. New York City Police Dep't, 853 F. Supp. 716, 720 (S.D.N.Y. 1994) (nine years ago, in a First Amendment case, awarding $ 250.00 per hour to sole practitioner of "intermediate experience").
We also note that defendants are correct in pointing out that a significant amount of counsel's recorded time was spent on ministerial tasks -- for example, copying and assembling papers and mailing [*11] them -- and that this type of work is properly compensated at a rate appropriate for clerical work, which recent precedent sets at $ 50.00 an hour. See, e.g., Cowan v. Ernest Codelia, P.C., 2001 U.S. Dist. LEXIS 185, 2001 WL 30501, at *9 (S.D.N.Y. Jan. 12, 2001); Pascuiti v. New York Yankees, 108 F. Supp. 2d 258, 267-68 (S.D.N.Y. 2000). Similarly, travel time will be compensated at a rate of one-half the approved billing rate, or $ 125.00 an hour. See, e.g., In re PaineWebber Ltd. P'ships Litig., 2003 U.S. Dist. LEXIS 13377, 2003 WL 21787, at *4 (S.D.N.Y. Aug. 4, 2003); Cowan, 2001 U.S. Dist. LEXIS 185, 2001 WL 30501, at *9.
D. The Number of Hours Billed
As noted, plaintiff's counsel has calculated that he spent 138.2 hours on tasks that are properly compensable. We have no reason to doubt the accuracy of this tabulation, which is set out in considerable detail, but we do view this total as excessive in view of the specific tasks that needed to be accomplished.
Ultimately, the work principally encompassed several letters to the court recounting plaintiff's discovery travails, a conference with the court, the briefing of the sanctions motion and the preparation of the fee application. [*12] We recognize that in judging the reasonableness of an attorney's investment of time, the court necessarily indulges in a degree of retrospective second-guessing, which can be quite unfair. We also recognize that the investment of time by an attorney in preparing detailed letters or motion papers may often be of considerable assistance to the court. Nonetheless, in this case we are left with the impression that counsel's efforts, while effective, required more time than can justifiably be compensated by the defendants, particularly in view of the healthy hourly rate that we are approving for counsel. n2

n2 Our point is that a generous hourly rate usually reflects substantial experience, which generally results in greater efficiency in accomplishing the required tasks.

Bearing in mind the degree of arbitrariness of this-process, we conclude that the nine hours spent on travel should be reduced by one-third to six hours, and that the 6.2 hours spent on ministerial tasks should likewise be reduced by approximately [*13] one-third, to four hours. As for substantive work, be it preparation of papers, attendance at court or conferring with other attorneys about tactics or legal matters, we conclude that the 123 listed hours should be reduced to 80 hours. Again, we acknowledge that this modification is necessarily impressionistic, but it fairly reflects what it should have taken for an attorney charging at the rate that we have approved to do what needed to be done.
E. Calculation of Fees and Costs
With these findings we may now calculate a fee and cost award. The 80 hours billable at $ 250.00 trigger fees of $ 20,000.00. The six travel hours billed at $ 125.00 yield $ 750.00, and the four hours for ministerial tasks billed at $ 50.00 yield an additional $ 200.00. Thus, the total fee award is $ 20,950.00. As for disbursements, there is no reason to reduce the requested amount, which is fully documented. Accordingly, that adds $ 263.76 to the total.
CONCLUSION
For the reasons noted, we award plaintiff $ 20,950.00 in fees and $ 263.76 in other expenses pursuant to Fed. R. Civ. P. 37(a)(4).

Dated: December 15, 2003
Michael H. Dolinger
United [*14] States Magistrate Judge