ORDER
KENT DAWSON, District Judge
Presently before the Court is Defendants' Motion to Dismiss (#8). Plaintiffs filed a response in opposition (#11) to which Defendants replied (#12).
I. Background
On February 4, 2008, the North Las Vegas Police Department Special Weapons and Tactics Unit ("SWAT") executed a search warrant procured by Detective Paul Freeman. The warrant was executed at 6:30 a.m. The SWAT team entered the house violently, believing it contained three armed, adult males wanted in alleged armed robberies. SWAT used an explosive device to destroy the front door and entered the house in a military style assault. Instead of encountering the wanted armed robbers, SWAT encountered the Cruz family, Jose, his wife Ana, and their three young children ages 8, 5, and 3. Jose was tackled to the floor, had his arms and hands restrained and was dragged out of the house in front of his wife and children. The rest of the family was soon taken outside with Jose, though not as violently.
SWAT then conducted an extensive search of the residence but failed to find the firearms and stolen property described in the search warrant. The North Las Vegas Police simply had bad information. Plaintiffs allege that the warrant and affidavit, executed by Detective Paul Freeman, failed to describe why Plaintiffs' home was targeted for the search. Plaintiffs also allege that Freeman was reckless by not using other investigative techniques to determine who actually resided at the residence. Plaintiffs allege that Defendants violated their Fourth, Fifth and Fourteenth Amendment rights, and bring state law claims for negligent supervision and training as well as intentional and negligent infliction of emotional distress. Plaintiffs filed the present action on November 19, 2009.
II. Standard for a Motion to Dismiss
In considering a motion to dismiss, "all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Consequently, there is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff has pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
The Iqbal evaluation illustrates a two prong analysis. First, the Court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 1949-51. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. If the allegations state plausible claims for relief, such claims survive the motion to dismiss. Id. at 1950.
III. Analysis
Defendants move to dismiss the Fourth, Fifth and Fourteenth Amendment claims against Freeman based on qualified immunity. The defense of qualified immunity is available if the official's conduct is objectively reasonable "as measured by reference to clearly established law." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A defendant is entitled to summary judgment based on the defense of qualified immunity only if, viewing the facts in the light most favorable to Plaintiff, the facts as alleged do not support a claim that the defendant violated clearly established law. Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). This is a purely legal question. Id.; see also, Wood v. Ostrander, 879 F.2d 583, 591 (9th Cir. 1989). Qualified immunity provides "an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question." Mitchell, 472 U.S. at 526.
Resolving the issue of qualified immunity involves a two-step inquiry. Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) First, the Court must determine whether "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201 (2001). A negative answer ends the analysis, with qualified immunity protecting Defendants from liability. Id. "If a constitutional violation occurred, a Court must further inquire whether the right was clearly established." Clement, 298 F.3d at 903 (quoting Saucier, 533 U.S. at 201) (internal quotations removed). If the law did not put the officials on notice that their conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. Saucier, 533 U.S. at 202.
Plaintiffs allege that Defendant Freeman violated their Fourth, Fifth and Fourteenth Amendment rights to be free from unreasonable searches and seizures, and free from deprivations of liberty and property without due process of law. All of these claims are asserted pursuant to 42 U.S.C. § 1983. "A public official is liable under § 1983 only if he causes the plaintiff to be subjected to a deprivation of his constitutional rights." Galen v. County of Los Angeles, 477 F.3d 652, 659 (9th Cir. 2007) (citing Baker v. McCollan, 443 U.S. 137, 142 (1979)). Plaintiffs must establish that a constitutional violation occurred and that Freeman "actually and proximately caused" the constitutional violation.Galen, 477 F.3d at 659.
Assuming that Plaintiffs' constitutional rights were violated, Plaintiffs cannot demonstrate that Freeman was the actual and proximate cause of the violations as they are required to do byBaker, 443 U.S. at 142, and Galen, 477 F.3d at 663. "Pursuant to traditional tort law principles of causation, which [the Court] applies to § 1983 claims, see Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996), a judicial officer's exercise of independent judgment in the course of his official duties is a superseding cause that breaks the chain of causation linking law enforcement personnel to the officer's decision." Galen, 477 F.3d at 663.
Freeman can only be liable for the unreasonable search and seizure of Plaintiffs and the deprivation of their property and liberty if he prevented the judge who issued the search warrant from exercising her independent judgment. Galen, 477 F.3d at 663. In an action against an officer alleging that the officer deliberately submitted inaccurate information in a search warrant affidavit in order to search the defendant's home and office, the standard for qualified immunity is governed by Franks v. Delaware, 438 U.S. 154 (1978). See Hervey v. Estes, 65 F.3d 784, 788 (9th Cir. 1995). In a civil rights case, "if an officer `submitted an affidavit that contained statements that he knew to be false or would have known were false had he not recklessly disregarded the truth and no accurate information sufficient to constitute probable cause attended the false statements, . . . he cannot be said to have acted in an objectively reasonable manner,' and the shield of qualified immunity is lost." Id., quoting Branch v. Tunnell, 937 F.2d 1382, 1387 (9th Cir. 1991) (overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (courts cannot require a heightened pleading standard regarding improper motive in constitutional tort cases)). "Plaintiffs must show that Freeman "deliberately or recklessly misled [Judge Tyrell]." Galen, 477 F.3d at 663.
Here, Plaintiffs allege in their complaint that Freeman's affidavit in support of his application for a search warrant does not describe why Plaintiffs' home was targeted for a search. However, under Mills v. Graves, 930 F.2d 729, 731-32 (9th Cir. 1991) and Smith v. United States, 321 F.2d 427, 430 (9th Cir. 1963), Freeman cannot be held liable for failing to articulate the factual basis establishing his assertion that probable cause exists to target a home for search. See Mills, (holding that an officer could not be held liable for failing to "articulate the foundation for finding probable cause" when the search warrants contained "boiler plate language that there was `probable cause to believe that controlled substances are being, used, manufactured, or kept' on the searched property" even though the "affidavit supporting the warrants contained no allegation remotely suggesting that narcotics would be found upon the searched premises"); Smith, (holding that an affidavit for a search warrant met federal standards when the affidavit referred to documentary nature of facts about which affiant was informed and gave precise address to be searched and specified items to be seized, even though the affidavit failed to state the underlying facts supporting the affiant's belief that contraband would be found on the premises).
Alternatively, Plaintiffs are arguing facts not asserted in the complaint that Freeman recklessly failed to do additional investigation that would have revealed that the armed robbery suspects did not live at the Plaintiff's home. In response to Plaintiffs' opposition to Defendants' motion to dismiss, Defendants have attached, the warrant, the affidavit and Freeman's investigative police report written after the search warrant was executed. Defendants argue that Freeman's affidavit references each of the documents or records that he relied on to determine where the armed robbery suspects resided. Defendants then use Freeman's post-execution police report to verify the accuracy of the address on the warrant.
However, the Court cannot consider materials outside the pleadings in resolving the motion to dismiss. Even if it could, Freeman's police report would not be admissible to demonstrate whether the cell phone records, DMV records and firearm registration records show Cornel Johnson's address as 7083 Pinebrook Ct., Las Vegas, NV 89147. The evidence must be admissible under the Federal Rules of Evidence. Accordingly, the Court must deny Defendants' motion to dismiss since a factual issue underlies Defendant Freeman's claim for qualified immunity.
Since the crux of Plaintiffs' complaint relies on Freeman's basis for asserting that probable cause existed to search 7083 Pinebrook Ct., the Court will allow limited discovery to determine if the records Freeman relied on in his affidavit did, in fact, list 7083 Pinebrook as suspect Cornel Johnson's address. If they did, the Court will allow Defendants to move for summary judgment on the basis of qualified immunity. If Freeman is entitled to qualified immunity, the Court will decline supplemental jurisdiction over the state law claims. Furthermore, if the documents do not support Freeman's contention, the Court will then revisit the sufficiency of the application for the search warrant under Galen.
IV. Conclusion
Accordingly, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (#8) is DENIED;
IT IS FURTHER ORDERED that this matter is REFERRED to the magistrate judge to establish a scheduling and discovery order related solely to the issue of the records underlying Defendant Freeman's affidavit in support of the search warrant.
DATED this 30TH day of September 2010.
emit $54,000 award);
Shea v. Icelandair, 925 F. Supp. 1014, 1022 (S.D.N.Y. 1996) (emotional pain and suffering from defendant's discriminatory conduct aggravated plaintiff's Parkinson's disease).
Based on the evidence presented, Menghi's emotional damages claims clearly exceed the "garden variety" claims in which the evidence "is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury." Bick v. City of New York, 1998 WL 190283, at *25 (S.D.N.Y. Apr. 21, 1998). Plaintiff's testimony was neither vague nor conclusory. She testified about the nature of the harassing phone calls — the use of her name by the caller and the threat of rape. Tr. 444. She testified generally about the terror, desperation, and on one occasion, the fear that the caller was outside the house, that she experienced during the phone calls. Id. 448, 450, 462. She also testified about the changes in her behavior prior to the identification of Hart as the caller, such as questioning whether the caller was a co-worker or someone from the gym or anyone she came in contact with. Id. 452. In addition, she provided specific examples of her long-term injuries such as checking the doors, windows, and alarm constantly, sometimes five to ten times before going to bed. Id. 484-85. She won't go out at night or to the gym alone, id. 482-83, she doesn't like to leave the house, and is "petrified" about being pulled over by a police officer. Id. 486.
Plaintiff also provided evidence beyond her own testimony. Both her mother and her friend testified about the changes to her personality and behavior as a result of the events underlying this case. Plaintiff's mother, Joanne Menghi, testified that prior to the harassing telephone calls, plaintiff was a "full, fun person" who loved to go out, and was carefree and full of life. Tr. 634. Mrs. Menghi further testified that after the calls, plaintiff stayed home more and was alert all the time, id. 642, that plaintiff was fearful of being left alone, id. 645, and that the joy was gone. Id. 643. Plaintiff's longtime friend, Jamie Dochtermann, described plaintiff prior to the calls as "very outgoing, very social, life of the party, and a lot of fun to be around." Id. 624. She described her observations of Menghi as "very distraught" and "hysterical crying" during the time frame of the calls, and that plaintiff was more introverted and resisted going out because she was afraid of returning home after dark and that "somebody would be hiding in the bushes." Id. 623-25. Ms. Dochtermann testified that the plaintiff was still affected and related a recent time when she observed plaintiff behaving fearfully, checking the house and garage locks, and verbally saying "the garage door is closed" to assure herself that the house was secure. Id. 626.
Her treating psychologist Dr. Abramson provided further support for her complaints. During her first visit to him, Menghi reported sleep disturbance, nightmares, depression, crying spells, panic attacks, feeling vulnerable, feeling tense when seeing police officers, and fear of being alone in the house. Tr. 138. He diagnosed her with PTSD, and found that the disorder was directly related to the harassing calls. Id. 131. Upon her return to treatment in 2007, Menghi reported mistrust of others, constant checking of doors to make sure they are locked, panic attacks, anxiety, vulnerability, fear of being alone, fear of strangers, fear of police officers, crying spells, and introversion. Id. 155. Dr. Abramson noted that despite the passage of time, she continues to suffer the same symptoms that are "quite persistent, chronic, pervasive, and affected the quality of her life." Id. 167. Ultimately, he testified that her prognosis is "not good," that this has been an "emotionally scarring experience," and that she will have residual anxiety for the rest of her life. Id. 167-68.
On the other hand, subsequent to the calls and the identification of Hart as the caller, plaintiff was apparently able to participate in a relationship that led to a second marriage, Tr. 427-28, and apparently has been able to maintain employment. Id. 430-32, 588.
As to the physical damages suffered by Menghi, Dr. Rosenthal testified that her Graves' disease was brought on by Hart's conduct. He further stated that Menghi must take Synthroid daily for the rest of her life and have blood tests every 4-8 weeks. Tr. 55. Menghi did not attribute any extreme impact on her life to the Graves' disease, stating only that "it's something that I'll have to deal with. I'll have to have my blood checked all the time to make sure I'm on the right dosage. And at different times in life, different age change and different occurrences can make the dosage change which will cause side effects." Id. 517.
I find that while the evidence supports a finding that her claimed emotional damages are greater than "garden variety," they do not fall into the more extreme category of "egregious" and should thus be considered "significant." I further find that she established some physical damage as well.
Typically, courts in this Circuit "have routinely found that awards ranging from $100,00 to $500,000 are not excessive for significant emotional distress damages." Thorsen, ___ F. Supp. 2d ___, 2010 WL 2671816, at *13 (collecting cases). An inability to work has been a factor in cases with awards in the $500,000 range. See Ramirez v. New York City Off-Track Betting Corp., 112 F.3d 38, 41 n. 1 (2d Cir. 1997) ($500,00 pain and suffering award in Title VII case was within court's discretion where plaintiff and his psychiatrist testified that plaintiff couldn't work and was "permanently non-functional"); Komlosi v. Fudenberg, 2000 WL 351414, at *17 (S.D.N.Y. Mar. 31, 2000) (awarding plaintiff $500,000 where no physical injury, but psychological injury was confirmed by physician and ability to practice his profession was destroyed), aff'd, 2002 WL 34244996 (2d Cir. 2002); see also Marchisotto v. City of New York, 2007 WL 1098678, at *3 (S.D.N.Y. Apr. 11, 2007) (award of $300,000 where in addition to evidence of PTSD, panic disorder, depression, anxiety, plaintiff was "too shattered" to return to his career), aff'd, 299 Fed.Appx. 79 (2008). However, there has been no evidence here that Menghi's ability to work has been impacted by the events underlying this case.
Higher awards have also been warranted where the emotional distress was accompanied by physical damages. See Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997) ($250,000 award where plaintiff-prisoner was sexually assaulted by guard and suffered from PTSD including depression, anxiety, fear and disturbed sleep and evidence included testimony from plaintiff, his mother, and several health professionals); Martinez v. Thompson, 2008 WL 5157395, at *3, 8 (N.D.N.Y. Dec. 8, 2008) (award of $500,000 in § 1983 excessive force case where plaintiff suffered from PTSD including nightmares, fear of law enforcement officials, anxiety, depression, but also had physical injuries including broken rib, chronic headaches). Menghi provided evidence of a physical component to her damages, i.e., the development of Graves' disease.
The case that presents the greatest similarities in the type of emotional distress alleged is Sulkowska v. City of New York, 129 F. Supp. 2d 274 (S.D.N.Y. 2001). In Sulkowska, plaintiff claimed that she was falsely arrested and imprisoned. As to her emotional damages, plaintiff testified to constant fear that someone is trying to kill her and "never goes to bed without checking all the doors and looking in corners, under the bed, and in the closet." Id. at 306. Her psychologist testified that she suffered from PTSD and that she was fearful of police, had feelings of helplessness, and difficulty sleeping. Id. at 305. In addition, the award was appropriate even though the plaintiff had outside sources of stress, such as depression related to the death of her husband and her own surgery for a brain tumor, and there was no evidence that she could no longer work. Id. at 304. The Court concluded that plaintiff was severely, if not permanently, injured, and awarded her $275,000. Id. at 308-09. That 2001 award, adjusted for inflation, would be valued at approximately $334,000 at the time of the verdict in this case. See CPI Inflation Calculator, U.S. Bureau of Labor Statistics, http://www.bls.gov/data/inflation_calculator.htm. See also Phillips v. Bowen, 278 F.3d 103, 111-12 (2d Cir. 2002) ($400,000 award not excessive where plaintiff, boyfriend, and co-workers testified to her emotional distress, physical illness, and effects on her lifestyle and relationships); Olsen, 615 F. Supp. 2d at 47-49 (upon testimony of three plaintiffs along with their health professionals, sustaining jury awards of $500,000 for depressive neurosis, anxiety, avoidance of friends and family, weight fluctuations, sleep issues, rapid heart beat, and migraines, $400,000 for anxiety disorder, stress related chest pains, migraines, and feelings of helplessness, $100,000 for feelings of anger, depression, and helplessness, adjustment disorder).
Based on my review of the cases as well as the evidence presented at the trial in this case, I find that an award of $1,000,000 falls well beyond the maximum award for the emotional damages suffered by plaintiff. Accordingly, there will be a new trial on compensatory damages unless Menghi agrees to a reduction to the sum of $500,000.
C. Excessiveness of Punitive Damages
The jury also awarded plaintiff $2,000,000 in punitive damages against Hart. Punitive damages "operate as `private fines' intended to punish the defendant and to deter future wrongdoing." Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432 (2001). However, "[a] punitive damages award will not be upheld where it is so grossly excessive that it `furthers no legitimate purpose and constitutes an arbitrary deprivation of property." Zakre v. Norddeutsche Landesbank Girozentrale, 541 F. Supp. 2d 555, 564 (S.D.N.Y. 2008) (citations omitted).
It cannot be seriously argued there is insufficient evidence to support a finding that Hart's behavior was reprehensible. See BMW of North America v. Gore, 517 U.S. 559, 574-75 (1996). He maliciously, explicitly and repeatedly threatened Menghi over the telephone, and it can be argued that if anything, the length of time between his calls induced a greater level of terror in his victim than if they had occurred over a shorter time span. Nonetheless, even though Hart's actions were reprehensible and "a defendant's conduct is obviously germane to the damages issue, `even outrageous conduct will not support an oppressive or patently excessive award of damages.'" Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir. 1992) (quoting Brink's Inc. v. City of New York, 546 F. Supp. 403, 413-14 (S.D.N.Y. 1982) (citations omitted)).
While an award of punitive damages is warranted, the court must still consider Hart's financial circumstances in assessing the amount. One purpose of punitive damages is deterrence and "deterrence is directly related to what people can afford to pay." Lee v. Edwards, 101 F.3d 805, 813 (2d Cir. 1996). The Second Circuit has indicated that it will not "affirm punitive damages awards that `result in the financial ruin of the defendant' or `constitute a disproportionately large percentage of the defendant's net worth.'" Patterson v. Balsamico, 440 F.3d 104, 122 (2d Cir. 2006) (quoting Vasbinder, 976 F.2d at 121).
In Patterson, the Second Circuit determined that a punitive damages award of $10,000 was appropriate where the defendant had an annual salary of approximately $37,000, owned a home that he had refinanced for $87,000, bank accounts totaling approximately $470, $5,000 in debt, and responsibility for two children. Patterson, 440 F.3d at 122-23. In Vasbinder, the Second Circuit addressed the financial circumstances of two individual defendants against whom the jury had awarded punitive damages awards of $150,000 each. Vasbinder, 976 F.2d at 118. One such award was reduced to $20,000 where the defendant had a net worth of $270,000 including home equity, an annual salary of $75,000, and annual pension of $29,000. The other award was reduced to $30,000 where the original $150,000 award would "consume" more than 30 percent of that defendant's net worth and over 40 per cent of his liquid assets. Id.
Hart testified that at the time of the trial, he worked in a factory making $10.00 per hour. Tr. 342:9. Based on that number and using a forty hour work week, Hart's annual salary, before taxes or a single expense, would be $20,800. Hart did not submit any additional evidence regarding his financial circumstances, either at trial or in support of his motion. In her opposition to Hart's motion, plaintiff did not address Hart's ability to pay. However "under well established precedent in this Circuit, `it is the defendant's burden to show that his financial circumstances warrant a limitation of the award.'" Mathie, 121 F.3d at 816 (quoting Lightning Bolt Prod., 861 F.2d at 373).
Although Hart's conduct was contemptible and should in no way be trivialized, an award of punitive damages in the amount of $2,000,000 against him is clearly excessive and must be reduced. Based on the evidence presented, the punitive damages award is reduced to $100,000 and a new trial on damages will be held if plaintiff does not agree to the remittitur.
V. Attorneys' Fees and Costs
The DPPA provides for an award of "reasonable attorneys' fees and other litigation costs reasonably incurred." 18 U.S.C. § 2724(b)(3). Plaintiff's counsel, Dan DeVita seeks an award of attorneys' fees in the amount of $257,647, taxable costs in the amount of $8,549.25, and discretionary costs in the amount of $11,814.30. See DE [166]. The County has submitted opposition to the request, see DE [179], and Hart has submitted a one-page document joining in the County's motion. See DE [180].
A. Appropriateness of Attorneys' Fee Award
The County first argues that the court should exercise its discretion and decline to make any award of attorneys' fees and costs against it. In the alternative, the County suggests that any award should be "fixed commensurate with its degree of liability herein, if any." County Mem. in Opp. at 4. It also contends that it should not be liable for attorneys' fees for any actions taken by defendant Hart. The County's argument apparently rests solely upon its contention that it cannot be vicariously liable under the DPPA. As the court has already determined that issue to the contrary, supra, I need not revisit it in this context.
The County next argues that no fees may be awarded for services rendered in pursuit of the ultimately unsuccessful § 1983 claims. Plaintiff's counsel acknowledges that this is an issue, but argues that the § 1983 claims and DPPA claims "are intertwined an arise for the same core of facts." Pl. Mem. at 9, DE [167]. See Quaratino v. Tiffany Co., 166 F.3d 422, 425 (2d Cir. 1999) (noting that an award of attorneys' fees may be made for both successful and unsuccessful claims where the facts are "inextricably intertwined" and involve a common core of facts). I find that the claims arose from the same set of facts and thus parsing out the claims which were ultimately unsuccessful is neither feasible nor appropriate.
B. Determination of Attorneys' Fees
Having decided that an award of attorneys' fees is warranted, I turn to a determination of that award. Plaintiff's counsel seeks recovery of the following attorneys' fees, including supplemental fees sought for preparing responses to post-trial motions:
HOURS RATE Total Attorney: 960.40 $295.00 $283,318.00 Attorney travel: 35.80 $147.50 5,280.50 Paralegal: 28.8 $80.00 2,304.00 Paralegal travel: 3.30 $40.00 132.00 TOTAL: $291,034.50 When assessing the reasonableness of legal fees, the court must determine the "presumptively reasonable fee" for an attorney's services by looking to what a reasonable client would be willing to pay, keeping in mind that "a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 189-90 (2d Cir. 2008) (internal citations omitted). In order to calculate the presumptively reasonable fee, the court must first determine a reasonable hourly rate for the legal services performed. Id. Reasonable hourly rates in attorney fee awards are determined with reference to a number of factors, including but not limited to those factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Arbor Hill, 522 F.3d at 186-87, 190. The Johnson factors, as articulated by the court in Arbor Hill, 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 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) the time limitation imposed by the client or the circumstances; (8) the amount involved in the case and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the `undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." 522 F.3d at 186, n. 3 (citing Johnson, 488 F.2d at 717-19). Those factors are to be considered within the context of the relevant legal "community," traditionally defined as "the district where the
district court sits." Id. at 190 (internal citation omitted).
Plaintiff's attorney, Daniel DeVita, has submitted a detailed declaration in support of the fee application. Noting that the DPPA claim is "an amalgam of various types of claims" with characteristics of civil rights claims, tort claims, and discrimination claims, Mr. DeVita submits that a presumptively reasonable rate would be $295 per hour for his time and $80 per hour for paralegal work. The County "does not suggest that the hourly rate requested by plaintiff is presumptively unreasonable," but urges the court to use its discretion to set a lower rate. County Opp. at 12, DE [179-7]. Based upon the two cases cited by the County, it apparently believes a rate of $250 per hour to be more appropriate. The County does not indicate whether it challenges the paralegal hourly rate of $80.00 sought by plaintiff's counsel.
Examination of the Johnson factors supports a finding that the hourly rate sought by plaintiff's counsel is reasonable. The case was labor intensive, requiring extensive discovery and significant motion practice, including a contested motion to amend and opposition to defendants' motions for summary judgment. The novelty and difficulty of the questions presented by the DPPA claim and the issue of vicarious liability further support the requested hourly rate. As the Johnson court noted, an attorney "should not be penalized for undertaking a case which may `make new law.' Instead, he should be appropriately compensated for accepting the challenge." Johnson, 488 F.2d at 718. Moreover, as a sole practitioner, the substantial time required on this case precluded Mr. DeVita from expanding his practice. See DeVita Decl. ¶ 15, DE [166] (stating that "[b]ecause of the factual and legal difficulty and complexity of this case, it necessarily limited my ability to grow my practice"). Mr. DeVita also stated that the $295 hourly rate sought here is consistent with his customary rate, DeVita Decl. ¶¶ 7-8, and that although he represents Ms. Menghi on a contingency basis, "one hundred percent of any amounts collected under this fee award application will go directly to plaintiff to reimburse her for the contingency fee payment." Id. ¶ 16. Additionally, counsel obtained a substantial jury verdict and damages award for his client.
As to counsel's experience and ability, at the time of the trial, Mr. DeVita had over 20 years experience, including significant litigation experience in both public and private practice. See DeVita Aff. ¶¶ 3-5. In the seven years leading up to the trial, he was a sole practitioner representing clients in commercial litigation, civil rights litigation, and employment discrimination cases. Id. I note that his conduct of this case was professional and exceedingly competent. He obtained a good result for his client in a difficult case with unusual legal issues.
While the size of the firm may be a consideration, "courts should not automatically reduce the reasonable hourly rate based solely on an attorney's status as a solo practitioner" and "[o]verhead is not a valid reason for why certain attorneys should be awarded a higher or lower hourly rate." McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 98 n. 6 (2d Cir. 2006); see also Kauffman v. Maxim Healthcare Servs., Inc., 2008 WL 4223616, at *9 (E.D.N.Y. Sept. 9, 2008); Alveranga v. Winston, 2007 WL 595069, at *8 (E.D.N.Y. Feb. 22, 2007) (awarding hourly rates of $250 and $185 to sole practitioners with 27 years and 5 years of experience, respectively).
The final Johnson factor is awards in similar cases, which factor also supports the requested hourly rate of $295. See Luca v. County of Nassau, 698 F. Supp. 2d 296, 305 (E.D.N.Y. 2010) (noting prevailing Eastern District rates of $300-400 for partners, $200-250 for senior associates, and approving rate of $275 for solo practitioner acting in of counsel role); Century 21 Real Estate, LLC v. Bercosa Corp., 666 F. Supp. 2d 274, 299 (E.D.N.Y. 2009) (approving hourly rates of $320 for partner, $230 for associate); Gutman v. Klein, 2009 WL 3296072, at *2 (E.D.N.Y. Oct. 13, 2009) (acknowledging going hourly rates of $300 to $400 for partners, $200 to $300 for senior associates, and $100 to $200 for junior associates).
Based on my examination of all the factors, I find that the hourly rate of $295 for Mr. DeVita is reasonable. As to the paralegal rate of $80, however, Mr. DeVita gives no information about the person who performed those services. As such, it is impossible to determine whether the rate was presumptively reasonable. In addition, while few hours, 32.1, are attributed to the unnamed paralegal, the services described are largely ministerial, such as copying and compiling pleadings and motion papers. Typically, in this Circuit, "clerical and secretarial services are part of overhead and are not generally charged to clients." Sulkowska, 170 F. Supp. 2d at 368-69 (citations omitted). Plaintiff's counsel has provided no detail to suggest that the tasks performed here required particular training. See, e.g., Guardado v. Precision Fin., Inc., 2008 WL 822105, at *6 (E.D.N.Y. Mar. 25, 2008) (allowing award where work of administrative assistant found to be "more akin" to paralegal work). As no particular skill set is required for those activities, I find that they are administrative costs that need not have been performed by a professional or billed separately, and thus I decline to award those fees.
As required by New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983), plaintiff's counsel has submitted contemporaneous billing records setting forth the date and amount of time when services were rendered and a description of the services performed. In reviewing the fees sought, it is clear that the court "should exclude excessive, redundant, or otherwise unnecessary hours." Quaratino, 166 F.3d at 425. While the court could subtract particular entries, "the Second Circuit has stated that the district court is not required to `set forth item-by-item findings concerning what may be countless objections to individual billing items.'" Alveranga, 2007 WL 595069, at *5 (quoting Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994)). In addressing excessive hours spent, "the court may make reductions to individual entries, or elect to account for such over-billing in an across-the-board percentage deduction." Manzo v. Sovereign Motor Cars, Ltd., 2010 WL 1930237, at *8 (E.D.N.Y. May 11, 2010) (citing Luciano v. Olsten Corp., 109 F.3d 111, 117 (2d Cir. 1997) (citation omitted)).
Turning to a review of the hours expended, I note that this case was both lengthy and hard-fought. There were discovery disputes, motions for default judgment and to amend the complaint, opposition to defendants' summary judgment motions, trial preparation, trial, and post-trial proceedings. Most of these battles resulted in at least partial victories for the plaintiff. In addition, the case presented novel questions of law that may have required additional research and expertise. That being said, the hours expended do appear somewhat excessive. For example, while I found above that the § 1983 claims and DPPA claims were inextricably intertwined, I note that the DPPA claims were not part of the original complaint and thus there is an argument that time billed prior to the amendment should not be recoverable. Pre-amendment time billed could, however, contribute to counsel's determination that a viable DPPA claim existed. Rather than determine the extent to which fees should be awarded for a particular entry, I have considered this scenario in my determination that the fees should be reduced on a percentage basis. In addition, the lack of specificity in some entries may warrant some reduction in the requested fee. See Bobrow Palumbo Sales, Inc. v. Broan-Nutone, LLC, 549 F. Supp. 2d 274, 284 (E.D.N.Y. 2008).
The County points to the discrepancy between the hours billed by its attorneys, 520.7, and those for which plaintiff's counsel seeks payment, 960.4, and suggests that "competent and successful representation could be provided in significantly fewer hours." County Opp. at 13. It does not, however, offer any legal support suggesting what weight, if any, the court should give to this information.
After reviewing the evidence submitted by the parties, and based on my familiarity both with the prevailing rates in this district and with the work performed in this particular case, I find that a reduction of 20% of the fee sought is appropriate. Removing the fees for paralegal work, the total fee sought is $288,598.50. Applying the reduction, I conclude that the resulting fee of $230,878.80 is presumptively reasonable.
C. Costs
In addition to attorneys' fees, plaintiff seeks recovery of taxable costs under the federal rules and this court's local rules. See Fed.R.Civ.P. 54(d); Local Civil Rule 54.1. Local Civil Rule 54.1(a) clearly provides that "[c]osts will not be taxed during the pendency of any appeal." As the County has noticed its appeal, plaintiff's motion is denied without prejudice to renew until after final disposition of the appeal.
Plaintiff also seeks recovery of costs "not covered by the local rule that are other litigation costs reasonably incurred" and thus recoverable under the DPPA. Pl.'s Mem. at 13. Specifically, plaintiff seeks to recover the following: Expert Witness fees — Dr. Abramson $3,122.50 Expert Witness fees — Dr. Rosenthal $7,610.00 Process server fees $293.10 Non-taxable cost deposition transcripts $788.70 TOTAL $11,814.30 The County argues that to the extent plaintiff seeks recovery for expert witnesses, such costs are not recoverable as they are not explicitly authorized by the DPPA.
The DPPA provides that, in addition to attorneys' fees, the plaintiff may recover "other litigation costs reasonably incurred." 18 U.S.C. 2724(b)(3). Although the plaintiff cites cases in which expert witness fees are awarded as a cost, those cases make the award without discussion. The Supreme Court has directed that "absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant's witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920." Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987); see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006) (in IDEA case, declining to interpret "costs" to mean all costs incurred including expert fees); West Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83 (1991) (superseded by statute). Plaintiff has not provided any legal authority to address the principle that if Congress intended to allow recovery of expert witness fees, it should have explicitly provided for that recovery in the statute. Accordingly, plaintiff's motion for discretionary costs is denied as to full recovery of the expert witness costs, and granted as to the remaining costs.
CONCLUSION
Defendants' motions under Rule 50 are denied. Defendants' motions under Rule 59 are granted to the extent that there will be a new trial on damages unless Menghi agrees to the reduction of her compensatory damages to $500,000. In addition, defendant Hart's motion is granted to the extent that there will be a new trial on punitive damages unless Menghi agrees to the reduction of her punitive damages to $100,000. Plaintiff's counsel shall, within twenty days of the entry of this order, provide the court with written notice of whether plaintiff has decided to accept the remittitur of both the compensatory and punitive damages awards. The Rule 59 motions are denied in all other respects. Plaintiff's motion for attorneys' fees and costs is granted in the amount of 230,878.80 and $1,081.80, respectively.
SO ORDERED