Broome v. Biondi

• Decision Date: 04 November 1997
• Docket Number: No. 96 Civ. 0805(RLC).,No. 96 Civ. 2262(RLC).,96 Civ. 0805(RLC).,96 Civ. 2262(RLC).
• Citation: 17 F.Supp.2d 230
• Parties: Gregory and Shannon BROOME, Plaintiffs-Counterclaim Defendants, v. Nicholas BIONDI, Richard Appleby, Katherine Cundey, Michael Silverman, Michael Weiner, and Beekman Hill House Apt. Corporation, Defendants-Counterclaim Plaintiffs. Nicholas BIONDI, Richard Appleby, Katherine Cundey, Michael Silverman, Lawrence Weiner, and Beekman Hill House Apt. Corporation, Third-Party Plaintiffs, v. Simone DEMOU, Third-Party Defendant. Nicholas BIONDI, Plaintiff, v. Simone DEMOU, Defendant.
• Court: U.S. District Court — Southern District of New York

Page 230

17 F.Supp.2d 230

Gregory and Shannon BROOME, Plaintiffs-Counterclaim Defendants, v. Nicholas BIONDI, Richard Appleby, Katherine Cundey, Michael Silverman, Michael Weiner, and Beekman Hill House Apt. Corporation, Defendants-Counterclaim Plaintiffs.

Nicholas BIONDI, Richard Appleby, Katherine Cundey, Michael Silverman, Lawrence Weiner, and Beekman Hill House Apt. Corporation, Third-Party Plaintiffs, v. Simone DEMOU, Third-Party Defendant.

Nicholas BIONDI, Plaintiff, v. Simone DEMOU, Defendant.

No. 96 Civ. 0805(RLC).

No. 96 Civ. 2262(RLC).

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

November 4, 1997.

COPYRIGHT MATERIAL OMITTED

Skadden, Arps, Slate, Meagher & Flom LLP, New York City (Scott D. Musoff, Joseph N. Sacca, Mark W. Smith, of counsel), for Plaintiffs.

Epstein, Becker & Green, P.C., New York City (Ronald M. Green, Patricia A. Murphy, Claudia M. Cohen, of counsel), for Defendants.

Latham & Watkins, New York City (Michael K. Hertz, John T. Brennan, Eric A. Richardson, of counsel), for Third-Party Defendant in No. 96 Civ. 0805, Defendant in No. 96 Civ. 2262.

OPINION

ROBERT L. CARTER, District Judge.

The plaintiffs in Case 96 Civ. 0805(RLC) move pursuant to 42 U.S.C. § 1988 and 42 U.S.C. § 3613 for an order awarding them attorneys' fees and expenses from December, 1995 through May 31, 1997 totaling $490,892.89; and third-party defendant in Case 96 Civ. 0805(RLC), who is also the defendant in Case 96 Civ. 2262(RLC), moves pursuant to 42 U.S.C. § 3613 to recover attorneys' fees and expenses from March 26, 1996 through May 6, 1997 totaling $459,067.61.

I. Background

The history and background facts of this controversy are set forth in considerable detail in a prior opinion reported at 1997 WL 83295 (S.D.N.Y. February 10, 1997) (Carter, J.) with which familiarity is assumed. Accordingly, only a brief summary of the facts is necessary to aid understanding of the remaining issues in this case. In February 1996, plaintiffs Gregory and Shannon Broome, filed suit under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq.; 42 U.S.C. § 1981, 42 U.S.C. § 1982, and the New York Human Rights Law, N.Y.Exec.Law § 296(5), alleging racially discriminatory rejection of their application to sublet an apartment.¹

Defendants² filed a counterclaim against the plaintiffs, and sued Simone Demou, the owner of the apartment that plaintiffs had agreed to sublet. In addition, Demou filed a counter-claim against defendants, all on various grounds over which we need not linger at this time.³

On May 6, 1997, following a seven day trial, the jury found defendants Biondi, Appleby, Cundey, Silverman, Weiner, and Beekman Hill House Apartment Corporation liable to plaintiffs for racial discrimination, and liable to third-party defendant for unlawful retaliation, breach of fiduciary duty, breach of contract, and tortious interference with the performance of a contract.⁴ The jury awarded plaintiffs $230,000 in compensatory damages and $410,000⁵ in punitive damages. The jury also awarded third-party defendant compensatory and punitive damages totalling $164,000.⁶

II. Attorneys' Fees

Plaintiffs and third party defendant, as prevailing parties, are entitled to attorneys' fees to be assessed against the opposing parties. Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1982).⁷ Defendants do not contest such entitlement here, but contend that the amounts claimed are unreasonable and excessive.⁸

A. Hours

1. Time spent on unsuccessful claims

Defendants argue that plaintiffs should not recover for time spent on their unsuccessful claim for intentional infliction of emotional distress or on their contemplated, but never pursued, claim of promissory estoppel. Ordinarily, fees may not be recovered for distinct, unsuccessful claims. Hensley, 461 U.S. at 440, 103 S.Ct. 1933. However, the fact that a plaintiff does not prevail on all claims advanced does not mandate a reduction of a fee award to account for time expended on the unsuccessful claims. In many 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.

Id., 461 U.S. at 435, 103 S.Ct. 1933. Especially in situations where a plaintiff obtains excellent results, "the fee award should not be reduced simply because the plaintiff failed to prevail in every contention raised in the law suit." Id.

The plaintiffs' claim for intentional infliction of emotional distress rests squarely on the same facts that supported their discrimination suit, namely, intentional discriminatory behavior. The factual commonalities underlying these suits render time spent on both claims virtually indivisible. Thus, the court finds that the failure of plaintiff's claim for intentional infliction of emotional distress does not warrant reducing the lodestar.

Plaintiffs' time sheets support their contention that any time spent on the promissory estoppel claim has been omitted from the fee application. Therefore, no further reduction on this score would be appropriate.

2. Time spent on state claims

Defendants argue that there should be no reimbursement for fees incurred to defend against the state law defamation and injurious falsehood claims which do not allow for attorneys' fees. See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 67 n. 7, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980); New York City Bd. of Educ. v. Sears, 83 A.D.2d 959, 443 N.Y.S.2d 23, 25 (App.Div.1981).

Prevailing over defendants' defamation claim required the examination and preparation of facts closely related to plaintiffs' case in chief. Defendants argued throughout the trial that they rejected plaintiffs' sublease application because they believed the plaintiffs to have wrongly accused them of using race as a factor in the approval process. Exposing this excuse as a pre-text for discrimination was an essential element in substantiating plaintiffs' discrimination contention and, therefore, prevents the lawsuit from being "viewed as a series of discrete claims." Hensley, 461 U.S. at 435, 103 S.Ct. 1933. Thus, plaintiffs are entitled to recover fees for time spent defending against the defamation counter-claim.

Similarly, the injurious falsehood and defamation claims brought against third-party defendant are inextricably connected to her successful counter-suits. Defendants legal actions taken against Demou formed a substantial portion of her case for unlawful retaliation. Separating time spent on third-party defendant's defense and counter-suits would be impossible. See United States Football League v. National Football League, 887 F.2d 408, 414 (2d Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990) (To the extent that time was spent on alternative means of relief to central claim and on related claims, it is fully compensable). No reduction for time spent on state claims will be granted.

3. Vague and ambiguous time sheet entries

Defendants contend that the time entries submitted by plaintiffs and third-party defendant inadequately describe tasks performed, inadequately detail travel time, and improperly group together several activities under one time entry.

Defendants are correct that both sets of prevailing parties occasionally provide vague descriptions of their work and include multiple tasks encapsulated in a single time entry. The time records overall, however, afford sufficient opportunities to evaluate the reasonableness of time expended on each task. "Second Circuit decisions generally reduce fee awards only when there are `numerous entries ... too vague under the Carey standard.'" Guzman v. Bevona 1996 WL 374144, at *4 (S.D.N.Y. July 3, 1996) (Patterson, J.). There will be no across-the-board reduction for lack of specificity.

Defendants, contention that plaintiffs' entries contain undisclosed travel time, thereby overcharging defendants since courts in this circuit customarily reimburse attorneys for travel time at fifty percent of their hourly rates, has merit. Jennette v. City of New York, 800 F.Supp. 1165, 1170 (S.D.N.Y. 1992) (Knapp, J.). Plaintiffs did not provide separate documentation for travel, but, based on Musoff's entries dated September 3, 1996 and March 28, 1997, four hours for travel time appears to have been charged. These hours will be reimbursed at fifty percent of the hourly rates. According to third-party defendant's billing records which are uncontroverted, no hours for travel were billed. Accordingly, there is no basis for any reduction on this score as to third-party defendant.

4. Excessive hours

Defendants argue that inordinate amounts of time was spent on certain tasks and that the large number of attorneys (nine) working on third-party defendant's case led to a plethora of duplicative work and unnecessary billing.

Considering the length of the litigation and the nature of the services performed, the time billed by third-party defendant's nine-person legal team appears to be excessive. While allowances for duplicative efforts were made by discounting the hours of four lawyers, the five remaining lawyers have not sufficiently accounted for the size of their billings. Therefore, there will be a 10% across the board reduction in the hours charged.

Finally, defendants contend that plaintiffs and third-party defendant should not be allowed to recoup hours billed for "overzealous litigious tactics," including time third-party defendant spent on her summary judgment motion and time the plaintiffs spent on their motion to dismiss the defendants' counterclaim. This argument has no merit. The defendants themselves pursued an extensive and intense legal strategy throughout the course of trial including the instigation of counter-claims against plaintiffs and the initiation of law suits against third-party...