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Garcia v. Hebert

United States District Court, D. Connecticut

May 10, 2018

ROBERT HEBERT, ET AL., Defendants.



         This 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.

         I. Background

         The 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[1] 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.)

         As 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[2] were unable to settle on a fee amount. Defense counsel's fee request is now pending before the court. (Doc. #341.)

         II. Legal Standard

         “Both [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).

         III. Discussion

         Counsel 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.)

         A. Reasonable Hourly Rate

         Defense 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 citations omitted)).

         B. Reasonable Hours

         Having determined a reasonable hourly rate for defense counsel, the court next determines the reasonable number of hours expended.

         The 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 ...

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