Loper v. New York City Police Dept.

• Decision Date: 24 May 1994
• Docket Number: No. 90 Civ. 7546 (RWS).,90 Civ. 7546 (RWS).
• Citation: 853 F. Supp. 716
• Parties: Jennifer LOPER and William Kaye, on behalf of themselves and all other persons who are similarly situated, Plaintiffs, v. NEW YORK CITY POLICE DEPARTMENT, and Lee P. Brown, as the Commissioner of Police of the New York City Police Department, Defendants.
• Court: U.S. District Court — Southern District of New York

853 F. Supp. 716

Jennifer LOPER and William Kaye, on behalf of themselves and all other persons who are similarly situated, Plaintiffs, v. NEW YORK CITY POLICE DEPARTMENT, and Lee P. Brown, as the Commissioner of Police of the New York City Police Department, Defendants.

No. 90 Civ. 7546 (RWS).

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

May 24, 1994.

George Sommers, New York City and Hoboken, NJ, for plaintiffs.

Paul A. Crotty, Corp. Counsel, New York City (Paul Marks, Bruce Rosenbaum, of counsel), for defendants.

OPINION

SWEET, District Judge.

Plaintiffs Jennifer Loper and William Kaye, on behalf of themselves and the class they represent (collectively the "Plaintiffs"), move for an award of attorney fees and expenses pursuant to 42 U.S.C. § 1988. Defendants New York City Police Department ("NYPD") and Lee Brown, the former Commissioner of NYPD, (collectively, the "Defendants") oppose Plaintiffs' award request.

The Parties, Facts and Prior Proceedings

The parties, facts and prior proceedings in this class action suit are fully set forth in the prior Opinions of this Court, familiarity with which is assumed. See Loper v. New York City Police Dep't, 999 F.2d 699 (2d Cir.1993) ("Loper VI"); Loper v. New York City Police Dep't, 802 F.Supp. 1029 (S.D.N.Y.1992) ("Loper V"); Loper v. New York City Police Dep't, 785 F.Supp. 464 (S.D.N.Y.1992) ("Loper IV"); Loper v. New York City Police Dep't, 90 Civ. 7546, 1991 WL 135631, 1991 U.S.Dist. LEXIS 9547 (S.D.N.Y. Jul. 16, 1991) ("Loper III"); Loper v. New York City Police Dep't, 766 F.Supp. 1280 (S.D.N.Y. 1991) ("Loper II"); Loper v. New York City Police Dep't, 135 F.R.D. 81 (S.D.N.Y.1991) ("Loper I"). A brief review of those facts and prior proceedings relevant to the instant motions is presented below.

The Plaintiffs filed this and a companion state action on November 23, 1990. The parties agreed to stay the state action pending the resolution of this lawsuit. In their Complaint, the Plaintiffs sought a declaration that an anti-loitering statute — N.Y.Penal Law § 240.35(1) (the "Statute") — and the Defendants' enforcement of it violated the First, Eighth, and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983. They also sought relief under the New York State Constitution.

At the time they filed this action, the Plaintiffs requested that it be maintained as a class. Their request was granted on April 2, 1991, provided the Plaintiffs submitted a suitable definition of the term "needy." Loper I, 135 F.R.D. 81, 83 (S.D.N.Y.1991). On April 8, 1991, the Plaintiffs provided a further definition of "needy," which was accepted subject to modification as the facts developed. Loper III, No. 90 Civ. 7546, 1991 WL 135631, at *2, 1991 U.S.Dist. LEXIS 9547, at **4-6 (S.D.N.Y. July 16, 1991). Together, Loper I and Loper III define a Plaintiff Class consisting of all those "needy persons who live in the State of New York, who beg on the public streets or in the public parks of New York City," where a "needy person" is defined as "someone who, because of poverty, is unable to pay for the necessities of life, such as food, shelter, clothing, medical care, and transportation." Id. 1991 WL 135631 at *2, 1991 U.S.Dist. LEXIS at *5.

Both parties moved for summary judgment in February 1991, before any significant discovery had taken place. Their motions were denied with leave to renew upon further discovery on June 17, 1991. Loper II, 766 F.Supp. 1280 (S.D.N.Y.1991). On November 19, 1991, the Plaintiffs again moved for summary judgment prior to the close of the discovery period. This motion was denied without prejudice as well, principally on the ground that the City had raised a question of fact concerning its enforcement scheme. Loper IV, 785 F.Supp. 464 (S.D.N.Y.1992).

The Defendants filed their last motion for summary judgment on April 21, 1992, the Plaintiffs in the meantime having filed a motion for additional discovery. The Plaintiffs' motion was granted in part, and the Defendants were ordered to turn over additional data to the Plaintiffs, primarily concerning the number of summonses the Department has issued under the Statute. The Plaintiffs subsequently filed a cross-motion for summary judgment which was granted in Loper V, 802 F.Supp. 1029 (S.D.N.Y.1992).

In Loper V, 802 F.Supp. 1029 (S.D.N.Y. 1992), this Court declared that the named Plaintiffs have standing, id. at 1035-36, that begging is entitled to First Amendment protection, id. at 1036-38, and that the Statute is unconstitutional, id. at 1038-47, and permanently enjoined the Defendants from enforcing the Statute, id. at 1048. The Second Circuit affirmed the holding of Loper V in Loper VI, 999 F.2d 699 (2d Cir.1993).

In light of the Second Circuit's affirmance, the Plaintiffs are "prevailing parties" within the meaning of 42 U.S.C. § 1988. As such, Plaintiffs now seek the following attorneys fees and costs:

                Hours    Rate      Lodestar   Upward Adj
                963.84   $300.00   $289,152   $433,728
                

In addition, Plaintiffs seek expenses of $1,923.42 and additional fees for the 118 hours expended in the course of this fee application.

Defendants oppose the Plaintiffs' fee application on the following grounds: (1) excessive hourly rate; (2) inflated number of billable hours; (3) lack of specificity in hours that are billed; (4) inappropriate request for compensation of travel time and clerical work; (5) enhancements are unjustified; and (6) incorrect calculation of costs and expenses. According to the Defendants, the Plaintiffs, counsel is entitled to only $64,847.92 in fees and $1,063.40 in expenses.

Although oral argument was heard on February 23, 1994, supplemental briefs and letter briefs were received by the Court through March 22, 1994, and the application was considered fully submitted as of that date.

Discussion

The sole issue before this Court is the determination of a reasonable amount of attorneys' fees to be awarded to the Plaintiffs in this action. This issue is considered in light of the Supreme Court's admonishment that "a request for attorneys' fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). On a fee application, the claimant has the initial burden of documenting and proving its claims. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Although a fee application hearing is a possibility, to the extent that the Plaintiffs have met their burden in the moving papers, their fee application is granted, in part, pursuant to the parameters set forth below.

I. Reasonable Hourly Rates

Generally, in awarding attorneys' fees under federal civil rights fee-shifting statutes, courts are directed to use the lodestar method. Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). The law of this Circuit further specifies that "the starting point of every fee award ... must be a calculation of the attorney's services in terms of the time he or she has expended on the case." City of Detroit v. Grinnell Corp., 495 F.2d 448, 470 (2d Cir. 1974) ("Grinnell I"). In Grinnell I, the Court of Appeals established what is known as the lodestar approach whereby a court multiplies the number of hours reasonably expended by a reasonable hourly rate to arrive at a reasonable attorneys' fee award. Grinnell I, 495 F.2d at 470-71; see also In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2899, 101 L.Ed.2d 932 (1988).

In setting the hourly rates of attorney fees, courts should use the prevailing market rates of the relevant legal community. See Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984) (holding attorneys must demonstrate their fees are "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation."); Miele v. New York State Teamsters Conference Pension & Retirement Fund, 831 F.2d 407, 408-09 (2d Cir.1987) (stating courts may apply prevailing market rates for "Wall Street" associates to fee award for non-profit organization).

The relevant community for fee determination is the judicial district in which the trial court sits, see In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir.1987), in this case, the Southern District of New York. See also Shlomchik v. Richmond 103 Equities Co., 763 F.Supp. 732, 743-44 (S.D.N.Y.1991) (awarding suburban Philadelphia attorney a higher New York City rate as action was litigated in Southern District); Miele v. New York State Teamsters Conference Pension & Retirement Fund, 831 F.2d 407, 409 (2d Cir.1987) (judge may determine reasonable fees based on his or her knowledge of prevailing community rates); McGuire v. Wilson, 87 Civ. 6161, 1994 WL 68222, at *3, 1994 U.S.Dist. LEXIS 2000, at **7-9 (S.D.N.Y. Feb. 28, 1994) (awarding Long Island law firm fees at New York City rate levels for Southern District litigation).

Fees will be based upon the relevant market place, New York City, as this action was litigated in the Southern District of New York, notwithstanding that Plaintiffs' counsel maintains his office in Hoboken, New Jersey. The action concerns a New York City Statute and was initiated against the New York City Police Department, on behalf of a class, most of whom are presumably New York City residents. As the work was only conducted in the previous three and a half years, it is appropriate to use current, and not historic, rates, see New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1153 (2d Cir.1983), and no fee augmentation will be awarded.

Plaintiffs' counsel supports his $300 an hour rate request with documentation as to his qualifications, background, training as well as information concerning his expertise in the area of First Amendment and general litigation. (Pls.' Letter of ...