Demarco v. Ben Krupinski Gen. Contractor, Inc., 12-CV-0573 (SJF)(ARL)

• Decision Date: 22 July 2014
• Docket Number: 12-CV-0573 (SJF)(ARL)
• Court: U.S. District Court — Eastern District of New York
• Parties: LOUISE DEMARCO, Plaintiff, v. BEN KRUPINSKI GENERAL CONTRACTOR, INC. and BEN KRUPINSKI, individually, Defendants.

LOUISE DEMARCO, Plaintiff, v. BEN KRUPINSKI GENERAL CONTRACTOR, INC.and BEN KRUPINSKI, individually, Defendants.

12-CV-0573 (SJF)(ARL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: July 22, 2014

OPINION AND ORDER

FEUERSTEIN, J.

On February 7, 2012, plaintiff Louise DeMarco ("plaintiff") commenced this employment discrimination action against defendants Ben Krupinski General Contractor, Inc. ("BKGC") and Ben Krupinski ("Krupinski"), individually, alleging, inter alia, discrimination based upon her disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., and the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law §§ 296, et seq., and violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601,seq. Following a bifurcated jury trial, the jury found, inter alia, that plaintiff proved by a preponderance of the evidence that her employment was terminated by defendants and awarded plaintiff damages in the total amount of seven thousand eight hundred forty dollars ($7,840.00) to compensate her for a net loss of wages and benefits to the trial date. Judgment was entered upon the jury verdict on September 30, 2013. Pending before the Court is plaintiff's motion for attorney's fees and costs pursuant to 42 U.S.C. § 12205. For the reasons set forth below, plaintiff's motion is granted to the extent set forth herein.

I. DISCUSSION

A. Attorney's Fees

Plaintiff sees to recover fifty-nine thousand three hundred forty-two dollars and fifty cents ($59,342.50) in attorney's fees based upon, inter alia: (a) an hourly rate of three hundred fifty dollars ($350.00) for services performed by Costantino Fragale, the principal of the Law Offices of Costantino Fragale and a self-proclaimed "seasoned civil rights litigator," (Plf. Mem. at 6); and (b) an hourly rate of two hundred dollars ($200.00) for services performed by Nicholas Curtiss-Rowlands, "an associate who graduated in the top ten percent of his law school, and graduated from both law school and college with Magna Cum Laude," (id. at 7).

Under the "American Rule" "historically applied" by courts in the United States, Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, 522 F.3d at 186 (2d Cir. 2008), "parties are ordinarily required to bear their own attorney's fees * * * absent explicit statutory authority." Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 602, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), superceded on other grounds by Open Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. As is relevant here, Congress has authorized the award of attorney's fees to the "prevailing party" in actions under, inter alia, the ADA. Specifically, Section 12205 of Title 42 of the United States Code provides, in relevant part, that "[i]n any action * * * commenced pursuant to this chapter, the court * * *, in its discretion, may allow the prevailing party * * * a reasonable attorney's fee, including litigation expenses, and costs * * *."

In cases under federal statutes authorizing the court to award "a reasonable attorney's fee" to a prevailing private party, e.g., actions under the ADA, 42 U.S.C. § 12205; Titles II and VII ofthe Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b) and 2000e-5(k), respectively; the Age Discrimination in Employment Act, 29 U.S.C. § 626(b); the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3613(c)(2); the Voting Rights Act Amendments of 1975, 42 U.S.C. § 1973.l(e); the Rehabilitation Act of 1973, 29 U.S.C. § 794a(b); the Individuals with Disabilities Education Act, 20 U.S.C. § 1415(i)(3)(B)(i); the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988(b), etc., "the governing principles and procedures are essentially the same." Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009); see also Buckhannon, 532 U.S. at 603 n. 4, 121 S. Ct. 1835 ("We have interpreted the[] fee-shifting provisions [in Title VII, the Voting Rights Act Amendments of 1975 and Section 1988] consistently * * *.")

It is undisputed that plaintiff is a "prevailing party" in this action, see generally Buckhannon, 532 U.S. at 603, 121 S. Ct. 1835, and, thus, may be awarded a reasonable attorney's fees and costs under Section 12205 of the ADA.

"In calculating attorney's fees, the district court must first determine the 'lodestar-the product of a reasonable hourly rate and the reasonable number of hours required by the case-[which] creates a presumptively reasonable fee.'" Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014) (brackets in original) (quoting Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011)); see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) ("The most useful starting point for determining the amount of a reasonable [attorney's] fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."); Bergerson v. New York State Office of Mental Health. Central New York Psychiatric Center, 652 F.3d 277, 289 (2d Cir. 2011) ("Attorneys' fees are awarded by determining a presumptively reasonable fee, reached by multiplying a reasonable hourly rate bythe number of reasonably expended hours.") The burden is on the fee applicant to submit evidence to support the number of hours expended and the rates claimed. Hensley, 461 U.S. at 437, 103 S.Ct. 1933.

1. Reasonable Hourly Rate

Defendants contend that the hourly rates sought for services performed by Mr. Fragale and his first-year associate, Mr. Curtiss-Rowlands, are unreasonable; that Mr. Fragale is entitled to an hourly rate of "no more than $200," (Def. Mem. at 8); and that Mr. Curtiss-Rowlands is entitled to an hourly rate of "no more than $100[.]" (Id.)¹

In calculating a "presumptively reasonable [attorney's] fee,"² Arbor Hill, 522 F.3d at 190, courts must consider "all of the case-specific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate." Id. (emphasis in original); see also Barfield v. New York City Health and Hospitals Corp., 537 F.3d 132, 151-52 (2d Cir. 2008) (accord). "[A] presumptively reasonable [attorney's] fee "boils down to 'what a reasonable, paying client would be willing to pay,' given that such a party wishes 'to spend the minimum necessary to litigate the case effectively.'" Simmons v. New York City Transit Authority, 575 F.3d 170, 174 (2d Cir. 2009) (quoting Arbor Hill, 522 F.3d at 184);see also Berserson, 652 F.3d at 289-90 (accord).

In Arbor Hill, the Second Circuit held that in determining a reasonable hourly rate, district courts should consider, inter alia, the following twelve (12) factors developed by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5^th Cir. 1974) ("the Johnson factors"):

"(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the 'undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases."

522 F.3d at 187 n. 3, 190. In sum, "in calculating the reasonable hourly rate for particular legal services, a district court should consider all relevant circumstances in concluding what a reasonable client would expect to pay." Id. at 184 n. 2. "The district court should then use that reasonable hourly rate to calculate what can properly be termed the 'presumptively reasonable fee.'" Id. at 190.

"[T]he nature of representation and type of work involved in a case are critical ingredients in determining the 'reasonable' hourly rate." Arbor Hill, 493 F.3d at 184 n. 2. However, "'the most critical factor' in a district court's determination of what constitutes reasonable attorney's fees in a given case 'is the degree of success obtained' by the plaintiff." Barfield, 537 F.3d at 152 (quoting Farrar v. Hobby, 506 U.S. 103, 114, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992)). "If a plaintiff has achieved only partial or limited success, the product of hours reasonably expendedon the litigation as a whole times a reasonable hourly rate may be an excessive amount[,]" Farrar, 506 U.S. at 114, 113 S. Ct. 566 (quotations and citation omitted), and "the district court should award only that amount of fees that is reasonable in relation to the results obtained." Hensley, 461 U.S. at 440, 103 S. Ct. 1933.

"A district court's assessment of the 'degree of success' achieved in a case is not limited to inquiring whether a plaintiff prevailed on individual claims." Barfield, 537 F.3d at 152. "Both 'the quantity and quality of relief obtained,' as compared to what the plaintiff sought to achieve as evidenced in her complaint, are key factors in determining the degree of success achieved," Id.; see also Farrar, 506 U.S. at 114, 113 S. Ct. 566 ("Where recovery of private damages is the purpose of . . . civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought." (quotations and citation omitted)). "Indeed, this comparison 'promotes the court's central responsibility to make the assessment of what is a reasonable fee under the circumstances of the case.'" Barfield, 537 F.3d at 152 (quoting Farrar, 506 U.S. at 114-15, 113 S. Ct. 566 (internal quotations and citation omitted)). "Having considered the amount and nature of damages awarded, the court may...