United States District Court, D. Connecticut
ORDER AWARDING ATTORNEYS' FEES AND COSTS
F. MARTINEZ, UNITED STATES MAGISTRATE JUDGE
case is before the court on remand from the Second Circuit
Court of Appeals to determine fees and costs associated with
the defense of plaintiff's frivolous appeal.
court assumes familiarity with the facts underlying the
plaintiff's claim and sets forth only the facts and
proceedings relevant to the pending issue of attorneys'
fees. Plaintiff commenced this § 1983 action against
numerous defendants. (Doc. #137.) After the court granted
summary judgment in favor of the defendants and closed the
case, the plaintiff filed a motion seeking an award of
attorneys' fees pursuant to § 1988. The court denied
the motion on the grounds that the plaintiff was not a
“prevailing party.” Garcia v. Hebert,
No. 3:08cv95(DFM), 2014 WL 11460459, at *1 (D. Conn. Dec. 3,
2014). The plaintiff appealed and the Second Circuit
affirmed. See Garcia v. Hebert, 622 Fed.Appx. 21 (2d
Cir. 2015) (summary order). The Second Circuit held that the
plaintiff's argument that he was a prevailing party was
based on the “catalyst theory, ” a theory which
the U.S. Supreme Court had “expressly rejected.”
Id. at 22. The Second Circuit ordered
plaintiff-appellant's counsel “to show cause why
they should not be held to be responsible for payment of
attorneys' fees and costs related to each Appellee's
defense of the appeal.” (Doc. #339 at 1.) After the
parties filed briefs in response, the Court of Appeals
concluded that the plaintiff's appeal was frivolous and
imposed sanctions “against Appellant's counsel . .
. in the amount of Appellees' costs and reasonable
attorneys' fees incurred by Appellees in litigating this
appeal.” (Doc. #339.) The Second Circuit remanded the
case “for the calculation of costs and reasonable
attorneys' fees.” (Id.) Following the
Second Circuit's mandate, this court ordered the
defendants to “file their papers, including an
itemization of the costs and reasonable fees incurred in
defending the frivolous appeal.” (Doc. #340.)
indicated, the case involved various defendants.
Plaintiff's counsel resolved claims for attorneys'
fees with most defense counsel. However, plaintiff and the
attorney for defendants Robert Hebert and John
Guerrera were unable to settle on a fee amount.
Defense counsel's fee request is now pending before the
court. (Doc. #341.)
[the Second Circuit] and the Supreme Court have held that the
lodestar - the product of a reasonable hourly rate and the
reasonable number of hours required by the case - creates a
presumptively reasonable fee.” Millea v. Metro-N.
R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011)(internal
quotation marks and citations omitted). “[T]he
presumptively reasonable 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. N.Y.C. Transit
Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal
quotations marks and citations omitted). “‘[A]ny
attorney . . . who applies for court-ordered compensation in
this Circuit . . . must document the application with
contemporaneous time records . . . specify[ing], for each
attorney, the date, the hours expended, and the nature of the
work done.'” Marion S. Mishkin Law Office v.
Lopalo, 767 F.3d 144, 148 (2d Cir. 2014) (quoting
N.Y. State Ass'n for Retarded Children, Inc. v.
Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)). The court
has “wide discretion in determining an appropriate fee
award.” Carter v. Incorporated Village of
Ocean Beach, 759 F.3d 159, 167 (2d Cir. 2014).
for defendants Hebert and Guerrera seeks $29, 304.50 in
attorneys' fees reflecting 202.1 hours at $145/hour and
$481.40 in costs. (Doc. #341 and #341-1.) The plaintiff
objects. (Doc. #347.) The court heard telephonic oral
argument on April 23, 2018. (Doc. #355.)
Reasonable Hourly Rate
counsel requests an hourly rate of $145. (Doc. #341 at 4.)
Plaintiff does not object. The court finds that defense
counsel's hourly rate of $145 is quite reasonable, and
perhaps a bit low, given comparable rates in the District.
See Friedman v. SThree PLC., No.
3:14cv378(AWT)(SALM), 2017 WL 4082678, at *5)(D. Conn. Sept.
15, 2017)(quoting Farbotko v. Clinton Cty. of New
York, 433 F.3d 204, 209 (2d Cir. 2005) and holding that
“[d]etermination of an appropriate hourly rate
‘contemplates a case-specific inquiry into the
prevailing market rates for counsel of similar experience and
skill to the fee applicant's counsel.'”);
Simmons v. N.Y.C. Transit Auth., 575 F.3d at 174
(holding that “[a]ccording to the forum rule, courts
should generally use the hourly rates employed in the
district in which the reviewing court sits in calculating the
presumptively reasonable fee.” (quotation marks and
determined a reasonable hourly rate for defense counsel, the
court next determines the reasonable number of hours
party seeking attorney's fees “bears the burden of
establishing that the number of hours for which compensation
is sought is reasonable.” Custodio v. Am. Chain
Link & Const., Inc., No. 08-cv-7148 (GBD)(HBP), 2014
WL 116147, at *9 (S.D.N.Y. Jan. 13, 2014) (citing Cruz v.
Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34
F.3d 1148, 1160 (2d Cir. 1994)). “Hours that are
‘excessive, redundant, or otherwise unnecessary, '
are to be excluded . . . and in dealing with such surplusage,
the court has discretion simply to deduct a reasonable
percentage of the number of hours claimed ‘as a
practical means of trimming fat from a fee
application.'” Kirsch v. Fleet St., Ltd.,
148 F.3d 149, 173 (2d Cir. 1998) (citations omitted). See
also Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir.
1994) (“We do not require that the court set forth
item-by-item findings concerning what may be countless
objections to individual billing items.”). The court
“looks to ‘its own familiarity with ...