Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00149-WIG Document 140-9 Filed 03/29/2005 Page 1 of 4
EXHIBIT 8

Case 3:03-cv-00149-WIG Document 140-9 Filed 03/29/2005 Page 2 of 4
2004 US. Dist. LEXIS l4l95
MICHAEL I. FAGO, PLAINTIFF, v CITY OF HARTFORD, ET AI., DEFENDANTS
ClV NO 3:02CVlI89(AHN)
UNTTIEZD STATES DISTRTCT COURT FOR Ti-IE DISTIHCT OF CONNECTICUT
2004 U S Dist. LEXIS 14l95
March l8, 2004, Decided
PRIOR HISTORY: Page v. City of Harltford, 2003 . ,.
us. our taxis asm ro. cum., ou:. 3 1, zoos; L°"'SN°“S(TMl H°"°“‘”°s
DISPOSITION: Plaintiffs motion for attomey‘s fees ggg;t§I;T:;i£!clL“};€i CMI Rights Enfgrcmnwn >
granted in part in amount of$ l,l00. J "
CASE SUMMARY [I~l"Nl]Tl1e Civil Rights A·ttorney's Fee Act of 1976
awards fees to a prevailing party in an action to
PROCEDURAL POSTURE: Plaintiffs counsel tiled vindicate certain federal civil rights 4.2 U.S.C.S. §
a motion for attorneys fees and costs under the Civil l988{b)
' I ' , - .... § . . . .
Rights Amlmgys FWS Act Of 1976 4) U S Cl Crvrl Procedure > .D.l'SC0l’(£!Q}! flrlerlmrls > Motrons ro
EQSS. seeking Sl 2,850. In support of the motion, com el
plaintiffs counsel submitted an atlldavit, which P
included information about his employment history Civil Procedure > Costs & Attorney Fees > Attorney
and an invoice for work performed in connection with Fees
a motion to compel and for sanctions that had been .
mm against defendants, [I~lN2]See Fed. R. Civ. P. 37{a)(4)(A).
OVERVIEW: Dcfmdams mgucd tim piaimiffs Prm;:erhu·c > Casts at Arrm··r1cy Fees > .»irt0rney
counsel erroneously filed the motion for fees pursuant
to the Act while the motion to compel and for [I·IN3]A district court is afforded broad discretion in
sanctions was based upon Fed R. Civ. P 37, and it assessing a reasonable fee award. The plaintiff is
was upon those grounds only that the court granted the entitled to the lodestar amount, which is calculated
motion for sanctions. The court agreed that it awarded from the product of a reasonable hourly rate and the
attomey's fees pursuant to R. 37. Defendants next number of hours reasonably expended by each
argued that tl court should deny a portion of the fees attorney This amount is derived by multiplying the
sought by plaintiffs counsel because it exceeded the number of hours expended by each attorney involved
sanction actually imposed in the court's ruling. The in each type of work on the case by the hourly rate
court had awarded the reasonable fees incurred by charged for similar work by attorneys of like skill in
plaintiffs counsel in attending oral argument on the the area However, the fee applicant bears the burden
motion to compel, but plaintiff sought fees for drafting of establishing entitlement to an award and
the motion for sanctions and to compel, for drafting a documenting the appropriate hours expended and
letter to the judge about the motion, for preparing for hourly rates.
oral argument on the motion, and for the cost of COUNSEL: IH] Fm Miclmgl In Fagca Piaimim
attending the oral argument. The court limited the . , . ,
. - Alyssa S. Vrgue, Brewer & O Neil, LLC, W. Hartford,
award to the cost of attending oral argument. T he court . , . _
g _ , . . CT. Erin I. ONe1l-Baker, West Hartford, CT, James S.
found that the attorneys affidavit did not meet the _ , . _ g
_ . _ _ Brewer, Brewer & ONe1l, West Hartford, CT.
burden of demonstrating that a rate of S3 300 per hour
was in line with rates prevailing in the local
community for attorneys of like skill and experience For City of Hartford, Bruce Marquis, Chief of Police,
Thus, the court reduced the rate to$275 per hour I/O, Kevin Jones, Asst Chief of Police, I/O, Mark
outcome: in me gmt it pat ptatttttrs t°=*rl·¤¤~ me Ctrl **9. teeth Burn tele tier
. , . . l/O, Mark Rudewrcz, Police Sgt, I/O, Stephen Miele,
motion for attorneys fees rn the amount of fil 1,I00. POHCB Sgt I/O Dcfcndamg Chimes in Howmd
CORE TERMS: oral argument, hourly rate, attending, Shipman & Goodwin — ConstPlza-Htfd, Hartford, CT
motion to compel, expended, skill, civil rights, Derek L Mogek, Shipman & Goowsin ~ ConstPlza-
reasonable fees, prevailing, comparable, drafting
Page I

Case 3:03-cv-00149-WIG Document 140-9 Filed 03/29/2005 Page 3 of 4
2004 U S Dist LEXIS 14195
lltfd, Hartford, CT. Gregg Peter Gounras, Shipman & heard, require the party or deponent whose
Goowsirr ~ ConstPlza—I—Itfd, Hartford, CT. conduct necessitated the motion to ay to
til
the moving party the reasonable expenses
For Nancy McClure, Police Lt, l/O, Patrick lobes, incurred in rnaking the motion .r.i "
Police Sgt, I/O, Robert Russell, Police Ofcr, l/O,
Defendants: Jennifer L Dixon, Kainen, liscalera & _ _ _ _ _ _ _ _ _ _ _ _ End Focmmcs _ _ _ _ _ _ _
Mcllale, PC, Hartford, CT. Joseph W McQuade, Uhm —
Kainen, liscalera & McHale, PC, Hartford, CT.
Secondly, defendants argue that the court should deny
For Paul Cherniak, Interested Party: John P Shea, Jr, a portion of the fees sought by plaintiffs counsel
Sabia & Hartley, Ll.C, Hartford, CT because it exceeds the sanction actually imposed in the
tO¤OES= HOLLY BO rsetMMONS» NYPD ii$;i5.1l“‘t‘l‘ Tl3.l..Tlir}¥Z“"1f`.ZlI;§’§.l ll§°2?Z3f3ZlEZ?1“’§Zl
srnrns tvrnorsrtusrrs. ruoon _ Y if . _. ,, g .
argument on this motion on April 24, 2003 (emphasis
OPIN{0NBY:l~lOLl..Yl3.PlTZSll\/ll\/{ONS added). Plaintiff {*4l seeks fees for drafting the
OtOOsO~= ROOINO ON MOTION rOs Elghlrlgfr?1glrlgltlrlrnlriznlluillgecllxtllgllills2rrll;l;;)1r?;
ATTORNEYS FEES hours), for preparing for oral argument on the motion
On April 24, 2003, the court heard oral argument on (2.5 hours), and for the cost of attending the oral
plaintiffs motion to compel and for sanctions {*2] argument (4.0 hours) The court awarded fees only for
[doc # 25-2]. In an August 8, 2003 ruling, the court the cost of attending the oral argument (4 0 hours)
gmmcd In palt plmmlfls rmlulm ffl éimcucns aglmlst Finally, defendant objects to the rate of 3 300.00 per
defendant Clr1efMarqu1s for his failure to appear for a _ __ _ _
depcsimm OU February 27 2003 [doc # 34] Chief hour sought by Attorney larrres Brewer. Defendant
_ . _ y ’ ,, _ ' A argues that Attorney Brewer represented in his original
Marquis was ordered to pay the reasonable fees . _ . , , .
. _, . . . . _ motion that hrs usual hourly rate is S3 250.00 per hour,
incurred by plaintiffs counsel in attending oral , . . .
y . . _. ,, and that he has failed to adequately explain charging
argument on this motion on April 24, 2003. [ld.] . .. _ _
. . . _. . , _ , an additional 35 50.00 per hour. Defendant argues
Counsel for plaintiff now brings a motion for attorneys Ammc Bmwer has {med to 3 HS bu d_ { E X
fees and costs [doc # 36] under tire Civil Rights the myuesmd mc is Fmgoggnlg br cllloilgigqv
Am!-Hayes FEBS Act of i976‘ satisfac?ory evidence in addition to his olvn lzlflldavitg
Seeking $ “2’8§O'OO7 In Support ofthe mmicm plaimiffs that the requested tale is in line with those prevailing
counsel submits an affidavit [doc # 38], which includes . . . . .
. _ . . . rn the cotnrnunrty for srmrlar services by lawyers of
information about hrs employment history and an . _.
. . . . ._ _ reasonably comparable skrll, experience, and
invoice for work perfornied in connection with the IB ummm Blum V Swusm 465 E} S 886 8% 79 L
m°ti°“ l° °°ml°€l* sg za sai. 104 s. cr. isnt sr ri. rr, 465 us. asa, ri
Defendants object to the motion for three reasons. L. Ed. 2d 891. 104 S. Ct. 1541 ]l984]. Attorney
First, they argue that plaintiffs counsel erroneously Brewer states in his affidavit that he believes il} 300.00
tiled the motion pursuant to the Civil Rirzhts Attorneys per hour is reasonable in eornparison to rates charged
Pee Act of i976, [l·INl]which awards fees to a by other §*5] attorneys in the area. Defendants,
prevailing party in an action to vindicate certain however, cite several recent Connecticut cases that
federal civil rights 42 U.S,C. § l988tb). Defendants have awarded an lrourlyrate offli 275.00 for civil rights
argue that the motion to compel and for sanctions tiled lawyers with experience comparable to or more
by plaintiffs on March 4 was [*3] based upon Federal extensive than Attorney Brewers See Tsonrbanidis v.
Rule of Civil Procedure 37, and it is upon those City of West Haven, 208 F. Supp. 2d 263 {D. Conn.
grounds only that the court granted the motion for .2002.]; see also Sabir v. Jowett. 2l4 F. Supp. 2d 226
sanctions. Tire court agrees with defendants that it {D.Conn.2002].
gggigdgfucrfjigjgrgj jre emet e {rant artist ......t is arial-its rad distraction rr.
""""‘—‘“‘""“‘— assessing a reasonable fee award See Hensley v.
—~~~~·—»—-»--· Footnotes —-—————-— Eckerirart. 461 U.S. 424. 437. 76 L. Ed. 2cl 40, 103 S.
-—---- Ct. 1933 §l983]; see also Lunday v. City of Albany.
H1 Federal Rule Of Cm] Procedure 42 IF Bd l3t 133 34 {2d Cir 1994). The plaintiff is
. y entitled to the lodestar amount, which rs calculated
37tal]4l]A) states, rn relevant part, _ _ y y
,, . . _ from the product of a reasonable hourly rate and the
{HN2} lf the motion rs grantedmthe court _ { E
hail mm Bffmding an Oppmymmty tc be number o tours reasonably expended by each
S ’ attorney. See Quaratino v. Tiffany & Co., l66 l*.3d
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Case 3:03-cv-00149-WIG Document 140-9 Filed 03/29/2005 Page 4 of 4
2004U.S Dist LEXIS 14195
422, 425 {2d Cir. 1999). This amount is "derived by
multiplying the number oft hours expendeci by each
attorney invoived in each type of work on the case by
the houriy rate charged for similar work by attorneys
of like skiii in the area." City of Detroit v. Grinueli
Corp,. 560 F.2d 1093. 1098 [2d Cir. 1977} [*63
(Grinneil ll) However, "the fee applicant bears the
burden of establishing entitlement to an award and
documenting the appropriate hours expended and
hourly rates." Hensley. 461 1.i.S.at43"/.
The court Ends that Attorney Brewefs afiidavit does
not meet the burden of demonstrating that a rate of S
.300.00 per hour is in iine with rates prevailing in the
iocai community for attorneys of like skill and
experience, Thus, the court reduces the rate to S 275 .00
per hour, and awards fees in the amount of S l,I00.00
(S 275 .00 per hour x 4.0 hours)
CONCLUSION
Plaintiffs motion for attorney's fees [doc # 36i is
GRANTED IN PART in the amount of 35 i,l00.
This is not a recommended ruling This is a discovery
ruling and order which is reviewabie pursuant to the
"eieariy erroneous" statutory standard of review. Q
U.S.C. § 636 tb)(l)tA); Fed. R. Civ. P. 6{zi). 6te] and
jgjmaj; and Rule 2 of the Local Rules for United States
Magistrate Judges As such, it is an order ofthe Court
unless reversed or modified by time {*7] district judge
upon motion timely made.
SO ORDERED at Bridgeport this 18th day of March
2004..
/s/
HOLLY B. FITZSIMMONS
UNITED STATES MAGiSTRATE JUDGE
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