Lincoln Bernier v. Mike Papagianopolous

United States District Court S.D. New York Oct. 2, 2006. MEMORANDUM & ORDER DOLINGER, Magistrate J. *1 Following the entry of judgment in favor of plaintiff Lincoln Bernier based on a jury verdict on a claim under 42 U.S.C. § 1983, plaintiff has moved for an award of attorney’s fees under 42 U.S.C. § 1988. Defendant has opposed, contending that the jury verdict was based on state law, and hence does not trigger eligibility for a fee award. We reject defendant’s argument and award plaintiff $46,182.50 in fees and $1,692.05 in costs. Defendant argues that plaintiff prevailed on what defendant characterizes as a state-law claim of injurious falsehood, and that accordingly he does not have a basis for an award under section 1988. The purported basis of this argument is found in the instructions given to the jury, which defendant believes reflect only a common-law tort claim. Defendant is wrong on this point. The federal claim at issue is one for procurement of a false arrest. That claim parallels state tort law except for the requirement that the plaintiff must establish that the defendant acted under color of state law. See Bernier v. Papagianopolous, Report & Recommendation at 40-43 (S.D.N.Y. Nov. 4, 2003) (citing cases). Although the jury was not asked to find whether the defendant had acted under color of state law, that was not because the only claim before it was a state-law tort claim. Rather, as we explained at trial, we did not submit the color-of-law issue to the jury solely because the evidence at trial established that element beyond triable dispute. In short, the jury verdict reflects an award on a claim asserted by plaintiff and recognized by the court under 42 U.S.C. § 1983. Accordingly, he is eligible for a fee award under section 1988. As for the amount of the award, plaintiff seeks fees for 92.15 hours spent by lead counsel Arthur Schwartz, Esq., at an hourly rate of $400.00, and for 33.90 hours spent by his colleague Edward Pichardo, Esq., at $275.00 per hour, or a total of $46,182.50, plus $1,692.05 in expenses. (Declaration of Arthur Z. Schwartz, Esq., dated Feb. 2, 2006, at ¶¶ 3-4 (first para. 4), 7-8). Defendant has not challenged these amounts, choosing instead to rest on his contention that no award can be made. We have nonetheless reviewed the request, including both the time claimed by counsel as reflected in contemporaneous time records, and the hourly rates claimed, and we conclude that it is reasonable. Our review is governed by the so-called lodestar method. See, e.g., Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.1997). Under this analysis we determine a presumptively appropriate fee award based on “the number of hours reasonably expended by counsel on the litigation multiplied by a reasonable hourly rate.” Id. (citing Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec. Workers,34 F.3d 1148, 1159 (2d Cir.1994)). See, e.g., Raniola v. Bratton, 2003 WL 1907865, *3 (S.D.N.Y. Apr. 21, 2003). *2 In this case the time for which plaintiff seeks compensation is limited to work done with respect to the Transit Authority defendants,1 and it includes time spent in meeting with the client, participation in a settlement conference, trial preparation, trial time and preparation of the post-trial fee application. Given the work that was reasonably required to accomplish the necessary tasks, the general efficiency exhibited by plaintiff’s counsel and the favorable outcome that resulted from the two attorneys’ investment of time, we see no reason to reduce the hours for which compensation is requested. As for the fee rates, they are reasonable given the experience of plaintiff’s attorneys2 and awards made in comparable cases. See, e.g., Raniola,2003 WL 1907865, at *6-7 (citing cases and affidavits discussing another attorney’s fee rates in this community for civil rights litigation, and awarding experienced small-firm practitioner $400.00 in 2003). Accordingly, we decline to adjust the requested rates. Finally, plaintiff seeks an additional amount of $1,692.05 in disbursements, which consists of documented deposition transcript charges and some copying charges. (See Schwartz Decl., ¶¶ 7-8 & Ex. B). There is no objection to this request, and it too is awarded. CONCLUSION For the reasons stated, plaintiff’s application under 42 U.S.C. § 1988 is granted, and he is awarded $46,182.50 in attorney’s fees and $1,692.05 in disbursements, or a total of $47,874.55. Defendant is to arrange payment of this sum within two weeks. All Citations Not Reported in F.Supp.2d, 2006 WL 2819590

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