by Lonnie Burton

In a Memorandum & Order dated December 21, 2016, United States District Court Judge Nicholas G. Garaufis, adopted in full a magistrate's Report & Recommendation (R&R) granting just over $20,000 in attorney's fees and costs to Plaintiff's attorneys in a lawsuit against members of the New York Police Department. That amount included just over $1,000 in costs, and five hours of attorney's fees for time Plaintiff's lawyers spent preparing and filing the motion for attorney's fees.

In this case three plaintiffs asserted numerous constitutional claims against nine named and 10 unnamed members of the NYPD. Once the case was settled in favor of the plaintiffs, their lawyers moved for an award of attorney'e fees and costs in the amount of $20,268.22. Five of the attorney fee hours were attributed to filing the attorney fee motion itself. Defendants filed a brief disputing Plaintiffs' right to receive what's known as a "fees-on-fees" award.

After the magistrate filed the R&R, Defendants asked Judge Garaufis to overturn the "fees-on-fees" award, arguing that Rule 68 of the Federal Rules of Civil Procedure precludes such an award. That rule states that a prevailing party is entitled to "fees and costs incurred up to and including the date of the" offer of judgment. Because Plaintiffs prepared and submitted the fee motion after accepting Defendants' offer of judgment, the court should have excluded the five hours Plaintiffs' lawyers spent on the fee motion from the award of attorney's fees, Defendants' argued. At a rate of $315 an hour, this would have reduced the fee award by $1,575.

The court, however, overruled Defendants' objections and confirmed the R&R in full. In doing so, Judge Garaufis said that Rule 68 would be inapplicable if a fee motion was disputed "in bad faith." Rule 68 would also not apply when the parties had a chance to settle the issue of attorney's fees as part of the settlement but chose not to do so.

In this case the court ruled that Rule 68 did not preclude the award of the five hours of attorney's fees because "Defendants had the opportunity to resolve the issue of attorney's fees and costs at the settlement conference [or) along with the (subsequent) Offer of Judgment." Their failure to do so, the court explained, did not deprive it of jurisdiction under Section 1988 to award attorney's fees and costs to a prevailing party.

Finally, in response to Defendants' assertion that Plaintiffs should have negotiated rather than litigated the issue of attorney's fees, the court noted that if Defendants truly believed that negotiation would have "produced swifter resolution," they should have responded to the fee motion with an offer to Plaintiffs rather than file a brief in opposition.

Judge Garaufis thus adopted the R&R in full, including the recommendation that "five hours spent preparing the instant motion and declaration is reasonable." See: John v. DeMaio, No. 15-CV-06094 (U.S.D.C. E.D. NY), December 21, 2016.

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