Wise v. Kelly, 05 Civ. 5442(SAS)(THK).

• Decision Date: 21 February 2008
• Docket Number: No. 05 Civ. 5442(SAS)(THK).,05 Civ. 5442(SAS)(THK).
• Citation: 620 F.Supp.2d 435
• Parties: Eddie WISE and Michael Brown, on Behalf of Themselves and Others Similarly Situated, Plaintiffs, v. Raymond W. KELLY, Commissioner of the New York City Police Department, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

620 F.Supp.2d 435

Eddie WISE and Michael Brown, on Behalf of Themselves and Others Similarly Situated, Plaintiffs, v. Raymond W. KELLY, Commissioner of the New York City Police Department, et al., Defendants.

No. 05 Civ. 5442(SAS)(THK).

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

February 21, 2008.

COPYRIGHT MATERIAL OMITTED

Matthew D. Brinckerhoff, Esq., Emery Celli Brinckerhoff & Abady, LLP, New York, NY, for Plaintiffs.

Rachel A. Seligman, Assistant Corporation Counsel, New York, NY, for Defendants.

ORDER

SHIRA A. SCHEINDLIN, District Judge.

I have reviewed the attached Report and Recommendation ("R & R") of United States Magistrate Judge Theodore H. Katz, dated January 31, 2008, which recommends the following: (1) that plaintiff Michael Brown be awarded $48,741.00 in attorney's fees on the Contempt Motion, to be paid by the Municipal Defendants; and (2) that plaintiff Eddie Wise be awarded $275,604.56 in attorney's fees and $4,733.72 in costs on the Rule 68 Motion, to be paid by the Municipal Defendants.

Although defendants were given the opportunity to file objections to the R & R, they chose not to do so. Based on my independent review, I find the amounts awarded to be reasonable and therefore adopt the R & R in full. The Clerk of the Court is directed to prepare a Judgment in accordance with the R & R. The Clerk of the Court is further directed to close plaintiffs' motions [Documents # 98 and 109].

SO ORDERED.

REPORT AND RECOMMENDATION

THEODORE H. KATZ, United States Magistrate Judge.

FROM: THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.

TO: HON. SHIRA A. SCHEINDLIN, UNITED STATES DISTRICT JUDGE.

This matter was referred to this Court for Reports and Recommendations on two motions for attorneys' fees filed by Plaintiffs in this case. The first motion, filed on June 21, 2007 (Docket Entry ("DE") 98), stems from the District Court's May 31, 2007 Opinion and Order, see Brown v. Kelly, No. 05 Civ. 5442(SAS), 2007 WL 1573957 (S.D.N.Y. May 31, 2007), which denied Plaintiff Michael Brown's motion for an order adjudging Defendants to be in contempt, but awarded Plaintiff reasonable costs and fees incurred with respect to the motion. This motion for fees will be referred to herein as the Contempt Motion. The second motion, filed on July 23, 2007 (DE 109), is based on Defendants' November 9, 2006 Offer of Judgment to former Plaintiff Eddie Wise, pursuant to Federal Rule of Civil Procedure 68, which Wise accepted. The Offer of Judgment included a provision agreeing to pay Wise his reasonable attorneys' fees, costs, and expenses up to the date of the Offer. This second motion will be referred to herein as the Rule 68 Motion.

Defendant does not dispute Plaintiffs' entitlement to fees in connection with either motion; the issue in both motions is only the appropriate amount to which Plaintiffs are entitled. The parties have asked the Court to consolidate its ruling on the Contempt Motion and the Rule 68 Motion because, although they are based on different events, many of Defendants' arguments relate to such things as hourly rates and billing practices and are, therefore, directed at both motions. In accordance with the parties' joint request, the Court will address the motions jointly to the extent feasible.

BACKGROUND¹

At issue in this case is the continued enforcement of an anti-begging statute, New York Penal Law § 240.35(1), which the Second Circuit declared unconstitutional almost fifteen years ago in Loper v. New York City Police, 999 F.2d 699, 701 (2d Cir.1993). On June 9, 2005, former Plaintiff Eddie Wise ("Wise"), a homeless man who was arrested pursuant to Section 240.35(1) multiple times from 2002 to 2005, initiated the instant action.² (See Memorandum of Law in Support of Plaintiff's [Rule 68] Motion For Attorneys' Fees ("R. 68 Mem."), at 1.) Wise filed an Order to Show Cause and Temporary Restraining Order against municipal and state defendants to, inter alia, prohibit further enforcement of Section 240.35(1). Shortly thereafter, the Municipal Defendants entered into a stipulation—which was "So Ordered" by the District Court on June 23, 2005—in which they agreed to take steps to prevent future enforcement of Section 240.35(1). Nevertheless, notwithstanding the clear mandates of Loper and the District Court's June 23, 2005 Order, enforcement of the statute continued.

During the course of hotly-contested pretrial discovery, in January 2006, Plaintiff Wise settled his claims against the New York State Defendants. As part of that settlement agreement, the Office of Court Administration ("OCA") was subpoenaed to provide critical enforcement-related tracking information to Plaintiff. According to Plaintiff, this information was essential to his case because the Municipal Defendants did not maintain records sufficient to show the extent of the continued unlawful enforcement of Section 240.35(1). (See Reply Memorandum of Law In Further Support Of Plaintiff Eddie Wise's [Rule 68] Motion For Attorneys' Fees ("R. 68 Reply"), at 2.)³ After receiving, reviewing, and processing the OCA records, Plaintiff's counsel sent a letter to the District Court in which he stated that the OCA data revealed routine and unabated enforcement of Section 240.35(1). (See Reply Declaration of Matthew D. Brinckerhoff In Further Support Of Plaintiff's [Rule 68] Motion For Attorneys' Fees ("Brinck. R. 68 Reply Decl.") ¶¶ 2-3 & Exhibit ("Ex.") AA.) In the same letter, Plaintiff's counsel indicated that he intended to file two motions: (1) a class-certification motion pursuant to Federal Rule of Civil Procedure 23(c); and (2) a motion seeking immediate relief from the continued enforcement of Section 240.35(1), including but not limited to, an order adjudging the Municipal Defendants to be in contempt. (Id.) Plaintiff stated that he would submit a letter formally requesting a pre-motion conference for these two motions no later than November 9, 2006. (Id.)

Rule 68 Offer

On November 1, 2006, Plaintiff provided the OCA data to Defendant City of New York (the "City"). On November 9, 2006, Plaintiff Wise submitted his pre-motion letter to the District Court regarding the class certification and contempt motions he sought to file. On that same day, the City extended a Rule 68 Offer to Wise in the amount of $100,001, "plus reasonable attorneys' fees, expenses and costs to the date of this offer." (See Declaration of Matthew D. Brinckerhoff In Support Of Plaintiff's [Rule 68] Motion For Attorneys' Fees ("Brinck. R. 68 Decl.") ¶¶ 27-29 & Exs. K & L.) On November 22, 2006, Plaintiff Wise accepted Defendant City of New York's Rule 68 Offer. (Id., Ex. M.) On November 27, 2006, Plaintiff Wise and newly-added Plaintiff Michael Brown ("Brown"), on behalf of themselves and others similarly situated, filed a First Amended Class Action Complaint. (See DE 50.) On December 5, 2006, the District Court entered Judgment for Wise and against the City, consistent with the Rule 68 Offer, and Wise's participation as a Plaintiff in the case came to an end. (Id., Ex. N.)⁴

Contempt Motion

On February 2, 2007, Plaintiff Brown filed a Motion to Amend the Complaint and for Class Certification.⁵ On March 30, 2007, Brown filed a Motion for Contempt against the City and New York City Police Department ("NYPD") Commissioner Raymond W. Kelly (hereinafter "Municipal Defendants") for their continued enforcement of Section 240.35(1). Despite unambiguous mandates to cease enforcement from more than one federal court, the District Court ultimately found Defendants' past conduct in enforcing Section 240.35(1) "contumacious," but declined to find Defendants in contempt because at some point in December, 2006, it appeared that Defendants began to make a proactive effort to end enforcement of the statute. See Brown, 2007 WL 1573957 at *4-6. Nevertheless, because the District Court believed that, absent Plaintiff's "persistence in monitoring and investigating the continued enforcement of section 240.35(1), defendants' noncompliance would have continued indefinitely," the court awarded Plaintiff "reasonable costs and attorneys' fees for its efforts with respect to this motion." Id. at *6. The court ordered Plaintiff to submit a fee application, which he did on June 21, 2007.

The District Court referred both of Plaintiffs' motions—the Contempt Motion and the Rule 68 Motion—to this Court for Reports and Recommendations. Again, there is no dispute about whether Plaintiffs are entitled to fees pursuant to the May 31, 2007 Opinion or the Rule 68 Judgment; the only question before the Court is the appropriate amount to which Plaintiffs are entitled.⁶

DISCUSSION

There has been an extensive amount of briefing on these two motions. It would be an understatement to say that Defendants have critically scrutinized every detail of Plaintiffs' counsel's billing records. In fact, Defendants are so critical of Plaintiffs' bills in connection with the Rule 68 Motion, that they ask the Court to award Plaintiff Wise no more than $15,000 of the $366,375.87 in fees and costs he seeks (a figure which does not include fees and costs for time spent in preparing the motion). (See id. at 22.)⁷ As set forth below Defendants do identify a limited number of fee entries that should be reduced or eliminated, but this Court believes that the bulk of Plaintiffs' fee requests are reasonable and appropriate.

I. Legal Standard

Traditionally, in order to resolve fee applications, district courts were required to "calculate a lodestar figure based upon the number of hours reasonably expended by counsel on the litigation multiplied by a reasonable hourly rate." Reiter v. MTA New York City Transit Auth., 457 F.3d 224, 232 (2d Cir.2006) (citing Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)). There was then a "strong presumption" that the lodestar figure was the reasonable fee, but it could be adjusted upward or downward in the district court's discretion based on...