Court filing
Memorandum and order on attorneys' fees — Agudath Israel v. Cuomo (Dec. 6, 2021) (2d Cir.)
Filed December 6, 2021 in Agudath Israel of America v. Cuomo; one of 37 filings from this case.
Record facts
| Court | U.S. District Court for the Eastern District of New York |
|---|---|
| Filed | 2021-12-06 |
U.S. District Court for the Eastern District of New York · No. 1:20-cv-04834-KAM-RML · Doc. 59 · 2021-12-06 · Docket on CourtListener
Full text
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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AGUDATH ISRAEL OF AMERICA, AGUDATH
ISRAEL OF KEW GARDEN HILLS,
AGUDATH ISRAEL OF MADISON, AGUDATH
ISRAEL OF BAYSWATER, RABBI YISROEL
REISMAN, RABBI MENACHEM FEIFER,
STEVEN SAPHIRSTEIN,
Plaintiffs,
-against-
KATHY HOCHUL, Governor of the
State of New York in her official
capacity,
Defendant.
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MEMORANDUM AND ORDER
No. 20-cv-04834 (KAM)(RML)
MATSUMOTO, United States District Judge:
Plaintiffs Agudath Israel of America, Agudath Israel of
Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of
Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, and
Steven Saphirstein (together, “Plaintiffs”) move, pursuant to 42
U.S.C. § 1988, to recover attorneys’ fees in the amount of
$921,862.50 and costs in the amount of $13,420.70 to compensate
their attorneys for the efforts and costs expended from the
inception of this litigation on October 6, 2020 through July 16,
2021, the date on which Plaintiffs’ application for fees was fully-
briefed. For the reasons set below, the Court grants in part and
denies in part Plaintiffs’ application, awarding fees in the amount
of $368,839.44 for Troutman Pepper Hamilton Sanders LLP and
$77,682.50 for the Becket Fund for Religious Liberty. The Court
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denies the costs claimed by Plaintiffs without prejudice for lack
of documentation.
BACKGROUND
I.
Procedural History
On October 8, 2020, Plaintiffs commenced this § 1983
action challenging Defendant’s Executive Order No. 202.68 (“EO
202.68” or the “Order”), issued on October 6, 2020, that placed
certain fixed and percentage capacity restrictions on houses of
worship in the areas of the State that were deemed “red” and
“yellow” zones based on the severity of COVID-19 cluster outbreaks
in Kings, Queens, Broome, Orange, and Rockland Counties.1 (ECF
No. 1, Complaint.) That same day, Plaintiffs also moved for a
temporary restraining order and a preliminary injunction against
the enforcement of the Order, noting the commencement of a Jewish
holiday at sundown the following day. (ECF No. 2, Emergency Motion
for Order to Show Cause for Temporary Restraining Order and
Preliminary Injunction.) The Court ordered Defendant respond by
11:00 A.M. on October 9, and Plaintiffs to file any reply two hours
thereafter. (ECF No. 6, Order to Show Cause.) On the afternoon
of October 9, 2020, the Court held a hearing during which it denied
the motion for injunctive relief based on, inter alia, Plaintiffs’
1 In red zones, gatherings in houses of worship were limited to 10 people or
25% of maximum capacity, whichever was lower. (ECF No. 56, Defendant’s
Memorandum of Law in Opposition to Plaintiffs’ Motion for Attorneys’ Fees and
Costs (“Def. Opp.”), at 4.) In orange zones, gatherings in houses of worship
were limited to 25 people or 33% of maximum capacity, whichever was lower. Id.
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failure to show a likelihood of success on their claim. (Minute
Order entered October 9, 2020.)
On October 19, 2020, Plaintiffs appealed the denial of
their motion for a preliminary injunction to the Second Circuit
and moved, two days later, for an emergency injunction pending
appeal and to expedite the appeal. (ECF No. 16, Notice of Appeal;
ECF No. 52, Plaintiffs’ Memorandum of Law in Support of Motion for
Attorneys’ Fees (“Pls. Br.”), at 5.) On November 9, the Second
Circuit granted the motion to expedite but denied the motion for
an emergency injunction because Plaintiffs had not first sought
that relief from this Court. Agudath Israel of Am. v. Cuomo,
979 F.3d 177 (2d Cir. 2020).
On November 16, 2020, Plaintiffs filed an emergency
application for writ of injunction with Justice Breyer of the
United States Supreme Court, pursuant to 28 U.S.C. § 1651(a), to
enjoin Defendant from enforcing EO 202.68’s capacity restrictions
on houses of worship pending the disposition of the appeal in the
Second Circuit. (Pls. Br. at 5.)
On November 25, 2020, the Supreme Court addressed
Plaintiffs’ application in tandem with Roman Catholic Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63 (2020), another § 1983 action
filed in this District challenging only the fixed capacity
restrictions of EO 202.68, noting that the two cases “present[ed]
the same issue.” Id. at 65. The Supreme Court enjoined the
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enforcement of the fixed capacity limits pending the Second Circuit
appeals, having found that “[t]he applicants have clearly
established their entitlement to relief” by showing that “their
First Amendment claims are likely to prevail,” “denying them relief
would lead to irreparable injury,” and “granting relief would not
harm the public interest.” Id. at 66.
In discussing the merits of the First Amendment claims
in the two cases, the Supreme Court held that the fixed occupancy
restrictions must satisfy strict scrutiny, as they “single out
houses of worship for especially harsh treatment” and therefore
are not regulations of general applicability. Id. The Supreme
Court
found
that
“[s]temming
the
spread
of
COVID-19
is
unquestionably a compelling interest,” but the restrictions were
not narrowly tailored, as there had been no evidence that the
plaintiffs in Agudath and Diocese contributed to the spread of
COVID-19 and “there are many other less restrictive rules that
could [have been] adopted to minimize the risk to those attending
religious services.” Id. at 67.
On December 28, 2020, the Second Circuit issued a joint
decision in Agudath and Diocese, reversing in part and vacating in
part the respective district court decisions that denied
plaintiffs’ motions for a preliminary injunction. Agudath Israel
of Am. v. Cuomo, 983 F.3d 620 (2d Cir. 2020). As to the fixed
capacity limitations, the Second Circuit reversed and remanded
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both cases to the district courts “with directions to grant a
preliminary injunction against enforcement of those limits.” Id.
at 637. As to the percentage capacity limitations, which were
challenged only by the Agudath plaintiffs in this action, the
Circuit Court vacated “to the extent that [the Court’s decision]
denied a preliminary injunction against [their] enforcement . . .
on houses of worship” and remanded, directing the Court to apply
strict scrutiny in the analysis of likelihood of success on the
merits. Id.
On remand, this Court entered a preliminary injunction
against the fixed capacity limits. (Order entered January 19,
2021.) On January 26, 2021, the Court scheduled an evidentiary
hearing for February 8 on Plaintiffs’ motion to enjoin the
percentage capacity limits and directed the parties to submit
witness lists, exhibit lists, and pre-hearing memoranda by
February 4. (Minute Order entered January 26, 2021.)
On February 2, 2021, Defendant filed a letter motion
requesting that the Court cancel the February 8 hearing because
Defendant did not oppose the entry of a preliminary injunction
against the enforcement of EO 202.68’s percentage capacity limits
in red and orange zones which “obviates the need for the . . .
hearing.” (ECF No. 31, Defendant’s Motion to Cancel Preliminary
Injunction Hearing and Related Briefing.) That same day, the Court
denied Defendant’s motion to cancel the February 8 hearing on the
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ground that the terms of Defendant’s consented injunction were
ambiguous. (Order entered February 2, 2021.) In that same Order,
the Court directed the parties to file a joint proposed order
granting a preliminary or permanent injunction. Id.
On February 4, 2021, Plaintiffs filed their witness
list, exhibit list, and pre-hearing memorandum, as ordered by the
Court during the January 26, 2021 status conference. (ECF No. 35,
Plaintiffs’ Pre-Hearing Memorandum of Law; ECF No. 36, Plaintiffs’
Witness List; ECF No. 37, Plaintiffs’ Exhibit List.) Defendant
did not file any of the ordered documents. Instead, Defendant
filed a letter motion for reconsideration of the Court’s denial of
his request to cancel the hearing and laid out the terms of his
proposed preliminary injunction in the letter motion. (ECF No.
34, Defendant’s Motion for Reconsideration of Motion to Cancel
Preliminary Injunction Hearing and Related Briefing.) The Court
held a status conference on February 5, 2021 to discuss Defendant’s
proposed injunction, during which it notified the parties that the
February 8 evidentiary hearing was adjourned and that instead a
further status conference would be held to discuss the parties’
proposed injunction. (Minute Order entered February 5, 2021.)
The parties were directed to submit a joint proposed order granting
an injunction later that day. Id.
Between
the
February
5
and
February
8
status
conferences, there were several letter motions filed by the parties
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related to their disagreement over the terms of a joint proposed
order. (ECF Nos. 39, 41, and 43, Letters; ECF No. 39-1 Proposed
Order.) During the February 8, 2021 status conference, the Court
sought the parties’ views regarding a permanent injunction
enjoining Defendant from enforcing EO 202.68’s fixed and
percentage capacity limits on houses of worship. Pls. Br. at 9.
Plaintiffs favored a permanent injunction, but Defendant did not.
Id.
On February 9, the Court entered a permanent injunction
enjoining Defendant from enforcing the Order’s fixed and
percentage capacity restrictions on houses of worship in red and
orange zones in New York State and ordered that the injunction
“shall apply to Defendant and all officers, agents, or employees
responsible for enforcing Executive Order 202.68.” (Minute Order
entered February 9, 2021.) After the Court entered the permanent
injunction, the parties engaged in negotiations over Plaintiffs’
fees and costs, but despite several months of negotiations, the
parties were not able to reach an agreement. (Def. Opp. at 7.)
II.
Amounts Sought
On June 25, 2021, Plaintiffs’ attorneys filed the
instant motion for attorneys’ fees. (ECF No. 51, Plaintiffs’
Motion for Attorneys’ Fees.) Plaintiffs seek a fee award of
$921,862.50, of which $748,732.50 relates to work performed by
Troutman Pepper Hamilton Sanders LLP (“Troutman”), and $173,130.00
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relates to work performed by the Becket Fund for Religious Liberty
(“Becket”). (ECF No. 58, Supplemental Declaration of Avi Schick
(“Schick Supp. Decl.”) ¶ 4.) Troutman’s $748,732.50 fee request
reflects 1069.4 hours worked on this case, at requested hourly
billing rates for partners of $995 and $815, and for associates of
between $595 and $460. (Schick Supp. Decl. at 2.) The paralegal
who worked on the case seeks $275 per hour. Id. The requested
rates for Plaintiffs’ counsel are reflected in the chart below:
Attorney
Rate
Avi Schick (Partner)
$995
Misha Tseytlin (Partner)
$815
Alex W. Smith (Associate)
$595
Mary Grace W. Metcalfe (Associate)
$595
Sean T. H. Dutton (Associate)
$540
Kevin M. LeRoy (Associate)
$540
Christopher J. Kelleher (Associate) $460
Sarah Harris-Finkel (Paralegal)
$275
Id.
Becket’s $173,130.00 fee request reflects 152.2 hours
worked on this case, at requested hourly billing rates for
attorneys of between $1200 and $860. (ECF No. 55-1, Exhibit A to
Declaration of Mark L. Rienzi (“Rienzi Decl.”); ECF No. 55-2,
Exhibit B to Rienzi Decl.) Becket’s requested rates are reflected
in the chart below:
Attorney
Rate
Mark Rienzi (President & CEO)
$1200
Eric Rassbach (VP & Senior Counsel) $1200
Luke Goodrich (VP & Senior Counsel) $1000
Lori Windham (Senior Counsel)
$1000
Daniel Blomberg (Senior Counsel)
$860
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Id.
Plaintiffs also seek an award of costs in the amount of
$13,420.70, “including expenses relating to court reporters,
filings, research, and printing, incurred in connection with this
action.” (ECF No. 54, Declaration of Avi Schick (“Schick Decl.”)
¶ 8.)
DISCUSSION
I.
Plaintiffs are Entitled to Attorneys’ Fees and Costs
The Civil Rights Attorney’s Fees Awards Act of 1976, 42
U.S.C. § 1988,2 authorized district courts to award reasonable
attorneys’ fees to prevailing parties in civil rights litigation.
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). “To qualify as a
prevailing party, a plaintiff must obtain at least some relief on
the merits of his claim.” Chabad Lubavitch of Litchfield Cnty.,
Inc. v. Litchfield Historic Dist. Comm’n, 934 F.3d 238, 243 (2d
Cir. 2019) (citing Farrar v. Hobby, 506 U.S. 103, 111 (1992))
(internal quotation mark omitted). There is no dispute that
Plaintiffs are prevailing parties within the meaning of Section
1988 and are thus entitled to a reasonable fee award. Plaintiffs,
who were granted the relief sought in its entirety, a permanent
injunction against the enforcement of EO 202.68’s capacity limits—
2 42 U.S.C. 1988(b) states, “In any action or proceeding to enforce a provision
of section[ ] . . . 1983 . . . the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney’s fee as
part of the costs . . . .”
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both fixed and percentage—on houses of worship in areas deemed red
and orange zones in New York State, are indisputably the prevailing
parties, a point not contested by Defendant. (See Def. Opp. at 1
(“Governor Cuomo does not dispute that Plaintiffs are prevailing
parties in this case and are therefore entitled to recover a
reasonable attorney’s fee pursuant to 42 U.S.C. § 1988(b).”).)
II.
Reasonable Attorneys’ Fees
Once a district court determines that a party has
prevailed, it must determine and calculate a reasonable attorney’s
fee. District courts are given “considerable discretion in
determining what constitutes reasonable attorney’s fees in a given
case.” Barfield v. N.Y.C. Health and Hosp. Corp., 537 F.3d 132,
151 (2d Cir. 2008).
District courts in this Circuit use what is commonly
referred to as the “lodestar” method to calculate a presumptively
reasonable fee, which involves multiplying the number of hours
reasonably expended on the litigation by a reasonable hourly rate.
Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany
& Albany Cnty. Bd. of Elections, 522 F.3d 182, 183 (2d Cir. 2008).
“[A] district court may, in extraordinary circumstances, adjust
the presumptively reasonable fee when it ‘does not adequately take
into account a factor that may properly be considered in
determining a reasonable fee.’” Lilly v. City of N.Y., 934 F.3d
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222, 230 (2d Cir. 2019) (citing Millea v. Metro-North R.R. Co.,
658 F.3d 154, 167 (2d Cir. 2011)).
A. Reasonable Hourly Rates
A reasonable hourly rate is “the rate a paying client
would be willing to pay,” “bear[ing] in mind that a reasonable
paying client wishes to spend the minimum necessary to litigate
the case effectively.” Arbor Hill, 522 F.3d at 190. “This rate
should be based on rates prevailing in the community for similar
services of lawyers of reasonably comparable skill, experience,
and reputation.” Lawton v. Success Acad. of Fort Greene, No. 15-
cv-7058(FB), 2021 WL 1394372, at *7 (E.D.N.Y. Jan. 3, 2021), report
and recommendation adopted, 2021 WL 911981 (E.D.N.Y. Mar. 10, 2021)
(citations omitted) (internal quotation marks omitted). “The
‘community’ is generally considered the district where the
district court sits.” Id. (citations omitted). In addition to
the prevailing district rates, the Second Circuit has advised
courts to consider the case-specific factors enumerated in Arbor
Hill and Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th
Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron,
489 U.S. 87, 92‒93 (1989).3 HomeAway.com, Inc. v. City of N.Y.,
3 The twelve Johnson factors are: (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 other 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) 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
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523 F. Supp. 3d 573, 595 (S.D.N.Y. 2021). The Arbor Hill factors
are:
[T]he complexity and difficulty of the case, the
available expertise and capacity of the client’s other
counsel (if any), the resources required to prosecute
the case effectively (taking account of the resources
being marshaled on the other side but not endorsing
scorched earth tactics), the timing demands of the case,
whether an attorney might have interest (independent of
that of his client) in achieving the ends of the
litigation or might initiate the representation himself,
whether an attorney might have initially acted pro bono
(such that a client might be aware that the attorney
expected low or non-existent renumeration), and other
returns (such as reputation, etc.) that an attorney
might expect from the representation.
522 F.3d at 184.
“In recent § 1983 cases, courts in this District have
set reasonable hourly rates at approximately $300-$450 for
partners, $200-$325 for senior associates, $100-$200 for junior
associates, and $60-$100 for paralegals,” Anania v. United States,
No. 16-cv-3542(SJF), 2021 WL 76837, at *4 (E.D.N.Y. Jan. 8, 2021),
and “fees in complex cases . . . have ranged between $400-$600 per
hour for partners, $200-$400 per hour for associates and $75-100
per hour for paralegals.” Lawton, 2021 WL 1394372, at *8. “The
highest rates in this district are reserved for expert trial
professional relationship with the client; and (12) awards in similar cases.
Johnson, 488 F.2d at 717‒19.
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attorneys with extensive experience before the federal bar, who
specialize in the practice of civil rights law and are recognized
by their peers as leaders and experts in their fields.” Scharff
v. Cnty. of Nassau, No. 10-cv-4208(DRH), 2016 WL 3166848, at *5
(E.D.N.Y.
May
20,
2016)
(citation
omitted),
report
and
recommendation adopted, 2016 WL 3172798 (E.D.N.Y. June 6, 2016).
See, e.g., Centro de la Comunidad Hispana de Locust Valley v. Town
of Oyster Bay, No. 10-cv-2262(DRH), 2019 WL 2870721, at *10
(E.D.N.Y. June 18, 2019) (awarding $600 hourly rates to two
experienced civil rights attorneys with more than fifty years of
experience, who had litigated other First Amendment cases and
worked as law school professors), report and recommendation
adopted, 2019 WL 2869150 (E.D.N.Y. July 3, 2019).
The rates that Troutman seeks, $995 and $815 per hour
for the partners, $595, $540, and $460 per hour for the associates,
and $275 per hour for the paralegal, significantly exceed those
usually awarded in this District. Becket’s claimed hourly rates
for its attorneys, $1200, $1000, and $860, deviate even further
from this District’s prevailing rates for civil rights actions.4
Avi Schick, a partner at Troutman, describes his and the rest of
4 In fact, the rates awarded in the recent complex civil rights cases in this
District that Plaintiffs cite to as support for higher rates are nowhere near
the rates claimed by Plaintiffs’ counsel. See, e.g., Centro, 2019 WL 2870721,
at *10‒*11 (awarding $600 and $500 hourly rates); Lawton, 2021 WL 1394372, at
*8‒*10 (awarding hourly rates between $500 to $600 for senior attorneys and
between $300 to $350 for mid-level attorneys).
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his team’s legal experience in a sworn declaration and provides
time sheets generally describing the work performed and time
expended by Troutman attorneys on this matter. (Schick Decl. ¶
13; ECF No. 54-1, Exhibit A to Schick Decl.; ECF No. 58-1, Exhibit
A to Schick Supp. Decl.) Likewise, Becket’s President and Chief
Executive Officer, Mark Rienzi, submitted a sworn declaration
describing his and the other Becket attorneys’ qualifications and
expertise. (Rienzi Decl. ¶¶ 11‒19). He also submitted the resumes
of the Becket attorneys as exhibits to his declaration. (ECF Nos.
55-4‒55-14, Exhibits D‒N to Rienzi Decl.) Mr. Rienzi, like Mr.
Schick, submitted time sheets describing the work performed and
time spent by the Becket attorneys on this matter. (ECF Nos. 55-
1‒55-3, Exhibits A‒C to Rienzi Decl.)
Defendant contends that these hourly rates are not
reasonable and argues that the Court should award rates no greater
than $450 for Troutman partners Schick and Tseytlin, and Becket
attorneys Rienzi and Rassbach; $325 for Troutman senior associates
Smith, Dutton, Metcalfe, and LeRoy, and Becket attorneys Goodrich,
Windham, and Blomberg; $200 for Troutman junior associate
Kelleher; and $100 for Troutman paralegal, Harris Finkel. (Def.
Opp. at 10.)
Although Plaintiffs’ counsel fail to provide the fee
agreement with their clients, Troutman counsel assert that their
requested hourly rates are their “customary hourly rates for
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complex work.” (Pls. Br. at 21.) (See also Schick Decl. ¶ 5 (“The
fees requested in this motion are based on Troutman Pepper’s rates
charged to Plaintiffs in this matter, which are materially
identical to the rates Troutman Pepper customarily charges its
clients in relation to substantially similar matters in terms of
novelty and complexity.”).) Becket counsel similarly fail to
provide a fee agreement, however, Mr. Rienzi states in his
declaration that the hourly rates claimed by Becket are less than
the typical rates of experienced Supreme Court practitioners but
above the rates that are set forth in the “LSI Laffey Matrix.”
(Rienzi Decl. ¶ 44.) According to Mr. Rienzi, “Becket proposes
rates that are approximately 20% lower than what would be
reasonabl[e] for Supreme Court experts.” (Rienzi Decl. ¶ 46.)
Plaintiffs argue that counsel’s rates are reasonable,
“[c]onsidering the complete victory in this watershed case for
religious freedom that counsel delivered while operating under
immense time pressure and addressing complex, novel questions of
constitutional law during a national emergency.” (Pls. Br. at
21.) Plaintiffs correctly note that the case was “of national
importance,” entailed “emergency briefing and argument schedules,”
precluded some of its attorneys from working on other billable
matters, and was litigated against “vigorous opposition of
Defendant.” (Pls. Br. at 16, 18.) Additionally, Plaintiffs assert
that the novelty and complexity of the issues demanded counsel
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highly experienced both in complex litigation and in “Free Exercise
and COVID-19 related challenges” and that Plaintiffs’ counsel
overcame “unfavorable case law” and pursued “what many considered
to be an ‘undesirab[le]’ position at the time.” Id. at 11, 18‒19
(citation omitted).
Here, the Johnson and Arbor factors cut both favorably
for and against Plaintiffs’ counsel. The Court agrees with
Plaintiffs that this was not a “garden variety” civil rights case
and, therefore, a relatively higher fee award is arguably
warranted. See Centro, 2019 WL 2870721, *6 (“[T]he complexity of
a matter will support an award at the high end of the district
spectrum”). Cf. Walker v. City of N.Y., No. 11-cv-314(CBA), 2015
WL 4568305, at *4 (E.D.N.Y. July 28, 2015) (“The straightforward
legal nature of the claims asserted here weighs in favor of an
award on the lowerend of the range.”). Other factors such as the
results obtained and their national impact, the demands of the
case, both in terms of time and resources, and the experience,
reputation, and ability of the attorneys, also weigh in Plaintiffs’
favor. See Barfield, 537 F.3d at 152 (“‘[T]he 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.”) (citing Farrar, 506 U.S. at
114); Heng Chan v. Sung Yue Tung Corp., No. 03-cv-6048(GEL), 2007
WL 1373118, at *3 (S.D.N.Y. May 8, 2007) (“it is appropriate to
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award a relatively high hourly rate that reflects the institutional
resources that made it possible for these attorneys to take on the
case”).
Simultaneously, however, some factors militate against
fee rates greater than those typically awarded to civil rights
attorneys
in
this
District
of
comparable
experience
and
reputation. First, some courts have observed that “a discount in
fees is appropriate insofar as the market rate for civil rights
litigation services is lower than the market rate for services
provided to high-profile corporate clients.” Heng Chan, 2007 WL
1373118, at *3. See also Pastre v. Weber, 800 F. Supp. 1120, 1125
(S.D.N.Y. 1991) (“we think there is force in defendant’s argument
that he should not be required to pay for legal services at the
rate Hughes Hubbard would charge to, say, General Motors or IBM
(should they be among its clients), but should be required to
compensate plaintiff only for what would have been charged by a
competent attorney specializing in civil rights litigation.”).
Additionally, it would be remiss of the Court to ignore
the non-monetary benefits, such as reputational enhancement, that
counsel may derive from its representation in this action. See
HomeAway.com, Inc., 523 F. Supp. 3d at 597 (“in a high-profile
case in which a firm’s victory may easily and profitably be
marketed to existing and potential clients, a client ‘might be
able to negotiate with [its] attorneys, using their desire to
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obtain the reputational benefits that might accrue from being
associated with the case’”) (quoting Arbor Hill, 522 F.3d at 190);
Schwartz v. United States Drug Enf’t Admin., No. 13-cv-5004(CBA),
2019 WL 1299192, at *8 (E.D.N.Y. Mar. 1, 2019) (holding that the
defendant should not have to pay the rates the firm’s corporate
clients would pay, in part, because the case gave its young
associates opportunities like “participat[ing] in a Second Circuit
oral argument” that would “undoubtedly enable[ ] the firm to
attract associates of a caliber that might not otherwise be
available to it.’”) (citing Pastre, 800 F. Supp. at 1125), report
and recommendation adopted, 2019 WL 1299660 (E.D.N.Y. Mar. 20,
2019). As noted repeatedly throughout Plaintiffs’ papers, the
plaintiffs in both this and the Diocese cases achieved a “watershed
victory,”5 and the exigent nature of the cases allowed counsel to
litigate in three different federal courts, including our Nation’s
highest court, in five months’ time. Having these factors in mind,
the Court considers the hourly rates of Troutman and Becket in
turn.
5 Plaintiffs also assert that the Court should apply “an upward adjustment” to
the
lodestar
amount
“because
this
litigation
presents
‘extraordinary
circumstances’ in which the factors underlying the presumptively reasonable fee
determination do not adequately account for the success achieved.” (Pls. Br.
at 27.) “[A]n enhancement may not be awarded based on a factor that is subsumed
in the lodestar calculation.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
553 (2010). In support of their argument that the instant case presented
extraordinary circumstances, Plaintiffs cite the results obtained, difficulty
of the case, and the undesirability of the case, which are fully reflected in
the lodestar calculation and, therefore, cannot be used as grounds for an
enhancement.
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19
Finally,
counsel
in
this
case,
in
tandem
with
plaintiff’s counsel in the Diocese case, raised similar arguments
before the appellate courts. Counsel in Diocese accepted fees of
$400,000.00 for virtually the same work.
Troutman’s Rates
Mr. Schick, a 1994 graduate of Columbia Law School, has
more than twenty-five years of experience and was a former Deputy
Attorney General of the State of New York. (Pls. Br. at 19; Schick
Decl. ¶ 13(a).) Although Mr. Schick has extensive complex and
appellate litigation experience, including arguing before the
Second Circuit, his practice focuses on government enforcement
actions and investigations. Additionally, the Court finds it
difficult to assess the depth of Mr. Schick’s experience litigating
Free Exercise cases based on the terse statement in his declaration
that “he has devoted a substantial portion of his practice to
pursuing Free Exercise claims.” (Schick Decl. ¶ 13(a).) Mindful
that the highest rates in this District for § 1983 claims are
reserved for attorneys “who specialize in the practice of civil
rights law and are recognized by their peers as leaders and experts
in their fields,” Scharff, 2016 WL 3166848, at *5, the Court finds
that $550 is an appropriate hourly rate for Mr. Schick. See
Lawton, 2021 WL 1394372, at *8‒*9 (awarding “a slightly lower rate
of $500 per hour,” to a senior attorney with “a long and
distinguished career as a litigator” because he, inter alia, “[did]
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20
not seem to have specialized in education and disability to the
same extent as” the other senior attorneys who were awarded $600
per hour).
Misha Tseytlin, a partner and head of the Appellate and
Supreme Court practice at Troutman, has been practicing for
approximately fifteen years. (Schick Decl. ¶ 13(b).) Prior to
joining Troutman, Mr. Tseytlin served as the Solicitor General for
the State of Wisconsin, as well as the General Counsel and Deputy
Solicitor General of the Office of the West Virginia Attorney
General. Id. He was a law clerk for the Honorable Anthony Kennedy
of the United States Supreme Court, the Honorable Janice Rogers
Brown of the D.C. Circuit, and the Honorable Alex Kozinski of the
Ninth Circuit. Id. Although Mr. Tseytlin “has pursued Free
Exercise claims in prior cases,” he, like Mr. Schick, does not
specialize in civil rights litigation. Id. Mr. Tseytlin has not
practiced as long as Mr. Schick has, but in consideration of his
significant appellate litigation experience and qualifications,
the Court finds that his reasonable rate is $500 per hour.
The Court finds reasonable a rate of $375 per hour for
W. Alex Smith and Mary Grace W. Metcalfe, and $350 per hour for
Sean Dutton and Kevin M. LeRoy, which are slightly above the range
of presumptively reasonable hourly rates between $200 and $325 for
senior associates in this District. These four associates, who
have practiced for about six to eight years, are entitled to rates
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21
at the high end of the spectrum for senior associates, in light of
the favorable case-specific factors discussed above. (Schick
Decl. ¶¶ 13(c)‒(f).)
Troutman junior associate Christopher J. Kelleher has
practiced for approximately two years and does not have experience
litigating Free Exercise claims other than the instant action.
(Schick Decl. ¶ 13(g).) The Court finds that $200 per hour, which
is the highest presumptively reasonable rate for junior associates
in this District, is appropriate. Finally, the “[p]revailing
hourly rates for paralegals in this District are typically between
$75.00 and $100.00.” Thomas v. City of N.Y., No. 14-cv-7513(ENV),
2017 WL 6033532, at *6 (E.D.N.Y. Dec. 1, 2017). The Court finds
that Troutman paralegal Sarah Harris-Finkel is entitled to an
hourly rate of $100, given that she has over twenty years of
experience as a litigation paralegal. (Schick Decl. ¶ 13(h).)
In sum, the Court finds the below hourly billing rates
for Troutman attorneys and paralegal reasonable.
Attorney
Rate
Avi Schick (Partner)
$550
Misha Tseytlin (Partner)
$500
Alex W. Smith (Associate)
$375
Mary Grace W. Metcalfe (Associate)
$375
Sean T. H. Dutton (Associate)
$350
Kevin M. LeRoy (Associate)
$350
Christopher J. Kelleher (Associate) $200
Sarah Harris-Finkel (Paralegal)
$100
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22
Becket‘s Rates
As noted above, the hourly rates claimed by Becket
diverge even further from the prevailing rates for this District.
Mr. Rienzi states in his declaration that Plaintiffs retained
Becket to serve “a very particular need”—to provide guidance on
their application to the Supreme Court for an All Writs Act
injunction. (Rienzi Decl. ¶¶ 20, 23.) Mr. Rienzi supports the
Becket attorneys’ hourly rates by citing to declarations submitted
by other Supreme Court practitioners in cases filed and litigated
in other federal districts. (Rienzi Decl. ¶¶ 37‒40.)6 According
to Mr. Rienzi, successful Supreme Court practitioners “earn
between $1,000 and $1,800 per hour.” (Rienzi Decl. ¶ 17.) This
Court recognizes Becket’s experience in religious liberty law and
extensive Supreme Court practice pursuing religious liberty
claims, including winning two prior emergency All Writs Act
injunctions. (Rienzi Decl. ¶¶ 4‒7.) Additionally, the Court
acknowledges that some clients choose to hire specialized Supreme
Court counsel to handle their cases before the Supreme Court. The
Second Circuit has noted, however, that “the touchstone . . . for
6 Mr. Rienzi’s declaration informs the Court of various rates that other Supreme
Court practitioners sought but does not shed light on the fees that they were
awarded. (See, e.g., Rienzi ¶ 17 (“For instance, in 2015, Thomas C. Goldstein
of Goldstein & Russell, P.C., sought fees based on a rate of $1,100 per hour
for his work on a Fourth Amendment case before the [Supreme] Court.”) (emphasis
added).) In fact, in Bourke v. Beshear, No. 13-cv-750(CRS), 2016 WL 164626,
*5‒*6 (W.D. Ky. Jan. 13, 2016), which Mr. Rienzi cites for the proposition that
Supreme Court practitioners “earn between $1,000 and $1,800 per hour,” the
district court awarded $750, $700, $400, and $425 per hour to the Supreme Court
practitioners.
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23
awarding attorneys’ fees in civil rights cases is that district
courts should award fees just high enough to attract competent
counsel,” Restivo v. Hessemann, 846 F.3d 547, 590 (2d Cir. 2017)
(citation omitted) (internal quotation marks omitted), not fees
that would allow litigants to hire the purported Rolls-Royce of
counsel.7 A reasonable hourly rate is “the rate a paying client
would be willing to pay,” and “a reasonable paying client wishes
to spend the minimum necessary to litigate the case effectively.”
Arbor Hill, 522 F.3d at 190. The Court finds that a reasonable
upward adjustment, albeit not to the extent sought by Plaintiffs,
to the District’s presumptively reasonable hourly rates are
appropriate to account for the Becket attorneys’ notable expertise
in religious liberty law and in pursuing All Writs Act injunctions.
7 Plaintiffs’ argument that the rates are reasonable because “if Becket were
charging its clients, it would be able to charge Supreme Court expert rates” is
also not availing. (Rienzi ¶ 43.) In a similar vein, David Zwiebel, Executive
Vice President of Agudath Israel of America, submitted a sworn declaration, in
which he, noting his “familiar[ity] with the ordinary and customary rates
charged by first-rate litigators in New York and Washington, D.C.,” opines that
“the rates sought by Troutman Pepper and the Becket Fund fall comfortably within
those rates.” (ECF No. 53, Declaration of David Zwiebel ¶ 14.) “On a fee-
shifting application, however, the governing test of reasonableness is
objective; it is not dictated by a particular client’s subjective desires or
tolerance for spending.” Beastie Boys v. Monster Energy Co., 112 F. Supp. 3d
31, 52 (S.D.N.Y. 2015). See also Gurung v. Malhotra, 851 F. Supp. 2d 583, 596–
97 (S.D.N.Y. 2012) (“The issue thus is not what well-heeled clients might be
willing to pay, but the ‘hourly rate at which a client who wished to pay no
more than necessary would be willing to compensate his attorney’”) (citing Arbor
Hill, 522 F.3d at 191).
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24
Mr. Rienzi, the President and Chief Executive Officer of
Becket, has been practicing law for about twenty-one years.
(Rienzi Decl. ¶ 4; ECF No. 55-4, Exhibit D to Rienzi Decl. (“Becket
Exhibit D”).) He joined Becket in 2011 and has been litigating
exclusively religious liberty cases since. (Becket Exhibit D.)
Mr. Rienzi is a professor of law at the Catholic University of
America, Columbus School of Law, and his academic work focuses on
religious liberty and First Amendment issues. (Rienzi Decl. ¶¶
10, 12.) From 2017 to 2019, he also taught religious liberty and
supervised a religious liberty externship clinic as a visiting
professor at Harvard Law School. (Rienzi Decl. ¶ 11.) Weighing
the relevant case-specific factors and Mr. Rienzi’s knowledge and
expertise in Free Exercise litigation and All Writs Act injunction
application, the Court finds that Mr. Rienzi is entitled to an
hourly rate of $600.
Eric Rassbach is Vice President and Senior Counsel at
Becket. (Rienzi Decl. ¶ 16.) He has been practicing for
approximately twenty-two years and has been litigating exclusively
Free Exercise cases at Becket since 2003. (Id.; ECF No. 54-5,
Exhibit E to Rienzi Decl. (“Becket Exhibit E”).) Mr. Rassbach has
won seven merits cases and two other All Writs Act injunctions at
the Supreme Court and argued six telephonic oral argument to the
Supreme Court. (Becket Exhibit E.) Like Mr. Rienzi, an hourly
rate of $600 is appropriate for Mr. Rassbach.
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25
Luke Goodrich, Vice President and Senior Counsel at
Becket, has been practicing for approximately seventeen years,
litigating exclusively religious liberty cases since 2008.
(Rienzi Decl. ¶ 17.) Mr. Goodrich, like Mr. Rassbach, has won
seven cases and two other All Writs Act injunctions at the Supreme
Court. (ECF No. 54-6, Exhibit F to Rienzi Decl. (“Becket Exhibit
F”).) From 2013 to 2021, Mr. Goodrich taught courses on law and
religion as an adjunct professor of law at the University of Utah,
S.J. Quinney College of Law. (Becket Exhibit F.) Considering
that Mr. Goodrich has not practiced as long as Mr. Rienzi and Mr.
Rassbach have, the Court finds $525 per hour is appropriate for
Mr. Goodrich.
Lori Windham is Senior Counsel at Becket, where she has
litigated religious liberty cases since graduating from law school
in 2005. (Rienzi Decl. ¶ 18.) Ms. Windham testified as an expert
on First Amendment and religious freedom law before the U.S. House
Judiciary Committee and the U.S. Civil Rights Commission. (ECF
No. 54-7, Exhibit G to Rienzi Decl.) An hourly rate of $500 is
also appropriate for Ms. Windham.
Daniel Blomberg is Senior Counsel at Becket. (Rienzi
Decl. ¶ 19.) He has been practicing law for about thirteen years
and has been litigating exclusively religious liberty disputes at
Becket since 2013. (ECF No. 54-8, Exhibit H to Rienzi Decl.) The
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26
Court finds that Mr. Blomberg is entitled to an hourly rate of
$450.
In sum, the reasonable hourly rates for Becket attorneys
are below.
Attorney
Rate
Mark Rienzi (President & CEO)
$600
Eric Rassbach (VP & Senior Counsel) $600
Luke Goodrich (VP & Senior Counsel) $525
Lori Windham (Senior Counsel)
$500
Daniel Blomberg (Senior Counsel)
$450
B. Reasonable Number of Hours Expended
The Court next considers the reasonableness of counsel’s
claimed number of hours.8 The party seeking attorney’s fees must
submit contemporaneously created time records in support of its
fee application, and the trial court has discretion to reduce the
claimed hours “where proposed billing schedules are unsupported by
evidence or objectively unreasonable.” Martinez v. City of N.Y.,
330 F.R.D. 60, 71‒72 (E.D.N.Y. 2019). See Schwartz, 2019 WL
1299192, at *10 (“When reviewing an application for attorneys’
fees, the Court should exclude ‘excessive, redundant or otherwise
unnecessary’ hours.”) (citing Hensley, 461 U.S. at 434). “Where
8 District courts have the authority to award fees incurred on appeal. See
Dague v. City of Burlington, 976 F.2d 801 (2d Cir. 1991) (holding that, “barring
unusual circumstances, when questions are presented such as the amount of
recovery, the extent to which a plaintiff is a prevailing party, and what if
any adjustment is to be given for delay in payment, determination of a reasonable
attorney's fee under the fee-shifting statutes should normally be decided by
the district court in the first instance.”). This Court, however, in assessing
the reasonableness of the hours claimed by Plaintiffs’ counsel for appellate
proceedings, notes the difficulty in doing so, given the lack of firsthand
observation of the services rendered by Plaintiffs’ counsel before the Second
Circuit and the United States Supreme Court.
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27
entries on a time sheet are vague or duplicative or otherwise
insufficient, a court need not itemize individual entries as
excessive; rather, it may make an ‘across-the-board reduction, or
percentage cut, in the amount of hours.’” Martinez, 330 F.R.D. at
72 (citation omitted). See also Fox v. Vice, 563 U.S. 826, 838
(2011) (“[T]rial courts need not, and indeed should not, become
green-eyeshade accountants. The essential goal in shifting fees
(to either party) is to do rough justice, not to achieve auditing
perfection.”).
Defendant argues that the hours expended by Plaintiffs’
counsel
are
excessive
for
the
following
reasons:
(1)
disproportionate billing by partners or partner-level attorneys
with high hourly rates, (2) duplication of work, (3) block billing,
(4) billing attorney rates for paralegal tasks such as cite
checking, proofreading, and collating fees, (5) inclusion of the
hours spent on Plaintiffs’ motion for an injunction pending appeal
in the Second Circuit, which was denied for procedural reasons,
(6) inclusion of the hours spent on tasks that did not lead to any
outcome, and (7) excessive and duplicative billing for work related
to the fee application. (Def. Opp. at 16‒24.)
Block Billing
At the outset, Troutman’s fee award should be reduced by
5% to account for block billing. The time entries submitted by
Troutman are fairly specific and note the tasks completed, but the
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28
entries fail to delineate the time spent on each discrete task,
thus hindering the Court’s ability to determine whether the hours
are reasonable, particularly where the number of hours blocked
together is high and covers time spent on multiple tasks. Although
block billing is not an automatic bar to recovery, the block-
billed time entries submitted by Troutman are similar to entries
found deficient and therefore warranting reductions by courts in
this Circuit. See, e.g., Benihana, Inc. v. Benihana of Tokyo,
LLC, No. 15-cv-7428(PAE), 2017 WL 6551198, at *6 (S.D.N.Y. Dec.
22, 2017) (“For example, [one] entry for January 9, 2017 reports
seven hours worked on ‘review and revisions of motion for
sanctions; editing and organization of exhibits; interoffice
conferences, telephone conferences, e-mails regarding status and
strategy.’”); Walpert v. Jaffrey, No. 13-cv-5006(PGG), 2016 WL
11271873, at *16 (S.D.N.Y. Aug. 17, 2016) (“For example,
Pasternak’s April 14, 2013 time entry indicates she spent 3.6 hours
on four separate tasks, Woldenberg’s August 15, 2013 time entry
indicates Woldenberg spent 4 hours on three separate tasks,
Pasternak’s January 13, 2014 time entry indicates she spent 8.3
hours on eight separate tasks and Pasternak’s January 14, 2014
time entry indicates she spent 4.1 hours on seven separate tasks”),
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29
report and recommendation adopted, 2017 WL 1063461 (S.D.N.Y. Mar.
21, 2017).9
As for Becket’s time entries, there are some instances
of block billing, as Defendant points out, but they are not so
deficient to warrant an across-the-board reduction.
Top-Heavy Staffing and Paralegal Tasks
Defendant asserts that a 5% reduction should be applied
for counsel’s top-heavy billing, meaning that partners were
utilized to accomplish tasks that could have been adequately
completed by an associate. (Def. Opp. at 16‒17.) The Court agrees
with Plaintiffs that Defendant, other than comparing the hours
billed by the four partner-level attorneys to those billed by the
rest of their respective teams, does not point to any specific
examples showing that partner-level attorneys took on associate-
level tasks. (ECF No. 57, Reply Brief in Support of Plaintiffs’
Motion for Attorneys’ Fees and Costs (“Pls. Reply”), at 16‒17.)
Additionally, in asserting that the relative number of hours billed
9 Some of the more egregious examples of block billing and duplication by
Troutman are an October 7, 2020 time entry by Mr. Smith for 19.9 hours that
states, “Draft memorandum of law in support of motion for temporary restraining
order and preliminary injunction, motion, declarations of plaintiffs and other
witnesses and attorneys, show cause order and declaration; prepare order to
show cause and TRO; research relating to free exercise clause claims; conference
with Avi Schick and Misha Tseytlin regarding strategy, and follow up calls and
emails,” and a November 12, 2020 time entry by Mr. Schick for 7.5 hours that
states, “Call with Todd Speigelman; confer with Alex Smith re request for
injunction, and review and revise letter re same; call with clients re Supreme
Court application; numerous client calls re application for emergency relief
from Supreme Court; review and revise draft application; calls and emails with
Misha, Alex, Becket and others re same.” (Exhibit A to Schick Decl.)
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30
by Mr. Rienzi and Mr. Rassbach is high, Defendant does not account
for the forty-five hours billed by Becket’s junior attorneys that
were voluntarily written off by Becket in an exercise of billing
judgment. Upon review of Troutman’s time records, the Court finds
that most of the hours billed by Mr. Schick and Mr. Tseytlin were
spent strategizing, outlining briefs, reviewing and editing draft
filings, preparing for and participating in oral argument,
communicating internally or with Becket, clients, or opposing
counsel, and conducting settlement negotiations. (Exhibit A to
Schick Decl.) As for Becket, the Court finds that the three-hour
task of finalizing a brief for filing that Mr. Rienzi completed on
November 16, 2020 could have been delegated to a more junior
attorney, such as Mr. Blomberg. (Exhibit C to Rienzi Decl.) The
Court therefore reduces the hourly rate for those 3 hours from Mr.
Rienzi’s rate of $600 to Mr. Blomberg’s rate of $450, which results
in a deduction of Becket’s requested fees by $450.
The courts in this Circuit are split on whether
proofreading, cite checking, and preparing exhibits are reasonable
attorney tasks. Compare Can. Dry Del. Valley Bottling Co. v.
Hornell Brewing Co., Inc., No. 11-cv-4308(PGG), 2013 WL 6171660,
at *6 (S.D.N.Y. Nov. 25, 2013) (“It is not unreasonable for an
attorney filing a motion to be involved in preparing the substance
of the motion papers, including supporting declarations and
exhibits, and cite-checking the finished brief."), with Putnam
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31
Leasing Co., Inc. v. Fields, No. 05-cv-141(RJD), 2007 WL 2230160,
at *5 (“Paralegal work generally includes preparation of trial
exhibits, factual investigation, assistance with depositions,
researching and cite checking.”). As for the 35.9 hours Troutman
spent on proofreading and cite checking, even if they were
reasonable attorney tasks, because they generally would be
accomplished by a junior-level attorney, the Court applies an
hourly rate of $150, the rate between the $100 per hour rate
awarded to Ms. Harris-Finkel and the $200 per hour rate awarded to
Mr. Kelleher. Therefore, Troutman’s fees should be reduced by
$6,790.00.10
The hours counsel billed for compiling appendices11 and
“collating fees,” on the other hand, should be billed at the
10 This includes: 2.15 hours, or one-quarter of the 8.6 hours Mr. Dutton spent
on October 8, 2020 completing four tasks, including proofreading documents for
filing (a $430 reduction); 0.7 hours Mr. LeRoy spent proofreading filings on
October 8, 2020 (a $140 reduction); 3.45 hours, or one-half of the 6.9 hours
Mr. Dutton spent on October 9, 2020 competing two tasks, including proofreading
and finalizing documents for filing (a $690 reduction); 0.8 hours Mr. Kelleher
spent cite checking on November 5, 2020 (an $40 reduction); 2.3 hours Ms.
Metcalfe spent cite checking on November 15, 2020 (a $517.50 reduction); 4.5
hours Mr. Dutton spent proofreading and finalizing papers for filing on November
16, 2020 (a $900 reduction); 10.5 hours Mr. Dutton spent cite checking,
proofreading, and finalizing filings on November 17, 2020 (a $2100 reduction);
1.7 hours Mr. LeRoy spent cite checking on November 21, 2020 (a $340 reduction);
2.3 hours Ms. Metcalfe spent cite checking on November 21, 2020 (a $517.50
reduction); 1.4 hours Ms. Metcalfe spent proofreading on November 22, 2020 (a
$315 reduction); 3.3 hours Mr. Dutton spent proofreading and cite checking on
December 14, 2020 (a $660 reduction); 2.8 hours Mr. Kelleher spent cite checking
on June 25, 2021 (a $140 reduction). (Exhibit A to Schick Decl.; Exhibit A to
Schick Supp. Decl.)
11 That compiling appendices for filing is a task that can be adequately
completed by a paralegal is demonstrated by Ms. Harris-Finkel’s November 17,
2020 time entry, which includes “[c]ompil[ing] and organiz[ing] documents in
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32
paralegal rate of $100 per hour. (Exhibit A to Schick Decl.;
Exhibit C to Rienzi Decl.) Therefore, Troutman’s fees should be
reduced by $750.00.12 As for Becket, the 4.5 hours Mr. Rassbach
spent on “collating fees” should billed at $100 per hour, resulting
in a reduction of its fees by $2,250.
Duplication of Work
Additionally, Defendant requests that the Court deduct
the “time incurred by Becket to prepare Troutman’s attorneys for
proceedings in the Second Circuit and in this Court, in which
Becket’s attorneys did not appear as counsel” and “time incurred
by Becket in preparing the motion for fees” as duplicative. (Def.
Opp. at 17 n.9.)
First, though Becket counsel should have noted their
appearance on this Court’s docket, the Court finds that, given
Becket’s expertise pursuing religious liberty claims in federal
court, including at the district and appellate levels, it was
reasonable for Becket to remain involved in the remanded
proceedings that followed the Supreme Court’s issuance of an All
Writs Act injunction.
For the hours billed by Becket for its work on the fee
application, the Court acknowledges Becket’s need to prepare and
connection with finalizing brief and appendix in the Second Circuit.” (Exhibit
A to Schick Decl.)
12 This includes 3.0 hours, or one-quarter of the 12.1 hours Mr. Dutton spent
on November 15, 2020 completing four tasks, including compiling an appendix for
a filing (a $750 reduction).
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33
submit
a
separate
contemporaneously
created
time
record,
declarations describing the circumstances of its engagement and
supporting the reasonableness of the fees claimed, and the resumes
of the attorneys who worked on this matter. Even so, the Court
finds 26.4 hours13 excessive, especially because Troutman appears
to have done most of the heavy lifting on the briefing for the
motion. For this reason, the Court applies a 50% reduction to
Becket’s hours expended on the fee application.
Unsuccessful Motion and “Tasks Without Results”
Finally, Defendant contends that the Court should apply
a 10% reduction to Troutman’s fees to account for the hours spent
on the motion for a preliminary injunction pending appeal in the
Second Circuit. (Def. Opp. at 21.) “As the Second Circuit has
noted, the standard for determining whether a party may recover
fees for a motion is not whether the motion was unsuccessful, but
whether it was frivolous.” Etna Products Co., Inc. v. Q Marketing
Group, Ltd., No. 03-cv-3803(FM), 2005 WL 2254465, at *8 (S.D.N.Y.
June 6, 2005) (citing Seigal v. Merrick, 619 F.2d 160, 164‒65 (2d
Cir. 1980)). The Court, though declining to rule on whether
Plaintiffs’ flawed motion denied by the Second Circuit on
procedural grounds is frivolous, nonetheless applies the 10%
reduction sought by Defendant based on Plaintiffs’ noncompliance
13 The Court does not include the 4.5 hours Mr. Rassbach spent “collating fees,”
which was already addressed supra.
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34
with Fed. R. App. P. 8(a)(1)(C). Agudath Israel of Am., 980 F.3d
at 2235.
Defendant also requests that the Court deduct by half
the time counsel spent on tasks that “did not lead to any outcome.”
(Def. Opp. at 22.) The Court grants a fifty percent reduction for
the 9.7 hours14 that Mr. Smith block billed for tasks that included
preparing discovery requests because Plaintiffs determined the
course of the litigation by seeking appeals and injunctive relief
in lieu of seeking discovery. The Court also grants Plaintiffs’
request for a fifty percent reduction of the 7.0 hours15 Mr. Smith
block billed for tasks that included drafting a letter to this
Court on Plaintiffs’ motion for injunctive relief pending appeal,
which was never filed. Therefore, half of 16.7 hours, or 8.35
hours, billed by Mr. Smith should be removed, resulting in a
reduction of Troutman’s fees by $3,131.25.
14 This includes: 3.3 hours Mr. Smith spent on tasks including “draft[ing]
discovery requests” on October 12, 2020; 3.7 hours Mr. Smith spent on tasks
including “draft[ing] requests for production of documents to Defendant” on
October 13, 2020; and 2.7 hours Mr. Smith spent on tasks including “[d]raft[ing]
Plaintiffs’ First Set of Requests for Production of Documents to Defendant” on
October 14, 2020. (Exhibit A to Schick Decl.)
15 This includes: 4.9 hours Mr. Smith spent on tasks including “draft[ing] letter
motion for injunctive relief pending appeal to district court” on October 19,
2020; and 2.1 hours Mr. Smith spent on tasks including “draft[ing] letter to
district court” on October 20, 2020. (Exhibit A to Schick Decl.)
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35
III.
Fee Award Calculation
The Court’s fee award calculations for Troutman and
Becket, having factored in the reduced rates and the deductions
discussed supra, are set forth below.
Troutman’s Fee Award
Name
Rate
Hours
Total
Avi Schick (Partner)
$550
286.6
$157,630.00
Misha Tseytlin (Partner)
$500
77.7
$38,850.00
Alex W. Smith (Associate)
$375
521.5
$195,562.50
Mary Grace W. Metcalfe (Associate)
$375
15.3
$5,737.50
Sean T. H. Dutton (Associate)
$350
101.5
$35,525.00
Kevin M. LeRoy (Associate)
$350
14.5
$5,075.00
Christopher J. Kelleher
(Associate)
$200
9.9
$1,980.00
Sarah Harris-Finkel (Paralegal)
$100
42.4
$4,240.00
$444,600.00
Deduction on Hours Spent Proofreading and Cite
Checking
-6,790.00
Deduction on Hours Spent Preparing Appendices
-$750.00
Deduction for Tasks Without Results
-$3,131.25
Percentage Cuts for (1) Block Billing and (2)
noncompliance with Fed. R. App. P.
-15%
TOTAL FEE AWARD
$368,839.44
Case 1:20-cv-04834-KAM-RML Document 59 Filed 12/06/21 Page 35 of 38 PageID #: 1371
36
Becket’s Fee Award
Attorney
Rate Hours Total
Requested Fees on the Merits
Mark Rienzi (President & CEO)
$600 34.3
$20,580.00
Eric Rassbach (VP & Senior Counsel) $600 54.1
$32,460.00
Luke Goodrich (VP & Senior Counsel) $525 12.9
$6,772.50
Lori Windham (Senior Counsel)
$500 10
$5,000.00
Daniel Blomberg (Senior Counsel)
$450 14.5
$6,525.00
Deduction for Top-Heavy Billing
-$450.00
$70,887.50
Requested Fees on Fee Application
Mark Rienzi
$600 13.1
$7,860.00
Eric Rassbach
$600 13.3
$7,980.00
Deduction on Hours Spent Collating Fees
-$2,250.00
Percentage Reduction for Overbilling
-50%
$6,795.00
TOTAL FEE AWARD ($70,565.00 + $6,795.00)
$77,682.50
IV.
Reasonable Costs
Finally,
Plaintiffs’
attorneys
have
sought
reimbursements for $13,420.70 in costs, “including expenses
relating to court reporters, filings, research, and printing,
incurred in connection with this action.” (Schick Decl. ¶ 8.)
Defendant
does
not
challenge
Plaintiffs’
calculation
or
documentation of costs.
“Reasonable
and
identifiable
out-of-pocket
disbursements ordinarily charged to clients are recoverable.”
Centro, 2019 WL 2870721, at *13. “Recoverable disbursements
include such items as legal research, photocopying, postage,
transportation, and filing fees.” HomeAway.com, Inc., 523 F. Supp.
3d at 589. However, the “fee applicant bears the burden of
adequately documenting and itemizing the costs requested.” First
Case 1:20-cv-04834-KAM-RML Document 59 Filed 12/06/21 Page 36 of 38 PageID #: 1372
37
Keystone Consultants, Inc. v. Schlesinger Elec. Contractors, Inc.,
No. 10-CV-696(KAM), 2013 WL 950573, at *10 (E.D.N.Y. Mar. 12, 2013)
(citation omitted). Under Local Rule 54.1(a), the “bill of costs
shall include an affidavit that the costs claimed are allowable by
law, are correctly stated and were necessarily incurred. Bills for
the costs claimed shall be attached as exhibits.” Local Rule
54.1(a).
Here, no documentation beyond an itemized list was
provided. (Exhibit A to Schick Decl.) The Court therefore denies,
without prejudice, the costs claimed by Plaintiffs for lack of
documentation. If Plaintiffs choose to renew their motion for
costs, they shall, by no later than December 13, 2021, file with
this Court an affidavit that the costs claimed are allowable by
law, are correctly stated, and were necessarily incurred, and shall
attach bills for the costs claimed as exhibits pursuant to Local
Rule 54.1(a).
Case 1:20-cv-04834-KAM-RML Document 59 Filed 12/06/21 Page 37 of 38 PageID #: 1373
38
CONCLUSION
The court concludes that Plaintiffs’ attorneys are
entitled to $446,521.94 in fees, which includes $368,839.44 for
Troutman and $77,682.50 for Becket. Plaintiffs’ application for
costs is denied without prejudice.
SO ORDERED
/s/
Kiyo A. Matsumoto
United States District Judge
DATED: Brooklyn, New York
December 6, 2021
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